Some alleged large scale drug traffickers (LSDT) who are detained believe that if they make a clean breast of all they know and did, they will receive a good plea bargain. This is not so. If the information a LSDT provides is not beneficial to the Government, the Government will not offer the trafficker a good deal. It is as simple as that.
Therefore, the thought of going to trial is not that unreasonable if the LSDT has nothing to offer. Some drug traffickers plead guilty in hopes that somewhere down the road, they will be able to cooperate and possibly have their sentence reduced. This too is a risky proposition because after a case is over the Government has no incentive to offer a defendant the opportunity to cooperate, and the defendant has no constitutional right to cooperate.
It is a wonder that paramilitaries wanted in the U.S. continue to cooperate in Colombia and the United States without getting some concession before doing so. It is of little consolation to be promised 8 years in Colombia for cooperation, only to receive 30 more in the United States. A federal judge could easily discount a defendant’s cooperation in and for Colombia (Justicia y Paz) as irrelevant and sentence a LSDT to substantial time.
When the paramilitaries were suddenly rousted from their beds, placed on a plane and brought to the United States, the first order of business should have been to get back to Colombia and to refuse to cooperate until they were returned or other concessions were exacted. One of the paramilitaries recently wrote a letter urging their return. Too little, too late. In Colombia the paramilitaries are public-political figures. In the United States, they are just large scale drug dealers.
So why give up your rights if you are going to get slammed anyway? Falling on the mercy of the Court will get the LSDT nowhere. Business is business, and if you have nothing to offer, trial may be the way to go.
The situation is not hopeless. Over the past few years prosecutors in the Southern District of New York have tried four times to convict the son of one of the most famous Mafia leaders of the century. He was accused of, among other things, murder. Each time he was tried, the jury was unable to reach a verdict and dismissed. His defense was that he had resigned from the Mafia more than five years earlier and the statute of limitations had expired. Some of the jurors bought the argument and as a result the jury would not convict.
The heart and soul of the case against him was the testimony of an informant who had his own criminal baggage to contend with. But we are talking about the mafia; we are talking about murder, and still the jury would not convict. Juries are fair.
I hasten to add that low level conspirators should continue to make a clean breast of their misdeeds. It can make a difference. It gives a prosecutor and the agents an opportunity to get a better picture of a low level defendant and can have a very positive effect, not just on the sentence, but on what type of plea agreement is ultimately offered. The prosecutor and the agents working the case have a tendency to demonize the people they are investigating. But when they get to know the defendants, it usually changes their minds for the better.
If you are Umar Farouk Abdulmutallab, the Nigerian citizen who was charged with trying to blow up a transcontinental airliner over Detroit on Christmas Day, believe it or not, you are in good shape. Abdulmutallab has leverage, and lots of it. He can provide the names, locations and phone numbers of people the U.S. is very interested in. And apparently the process has already begun. White House spokesman, Robert Gibbs has said that Mr. Abdulmutallab has provided “useable, actionable intelligence.” A law enforcement official said Mr. Abdulmutallab explained who gave him the bomb, where he received it and where he was trained to use it, among other things.
Eventually, Mr. Abdulmutallab stopped talking and asked for a lawyer, which was a smart thing to do. You have to get to give, and Mr. Obama’s counterterrorism adviser, has said the administration “hoped” that the leverage of a plea bargain would encourage Mr. Abdulmutallab to provide any more information he may possess. This defendant, who wanted to kill three hundred people on a plane, leaving their families distraught and changed forever, can get a good plea bargain. It’s just business.