"Rolling Over" in Criminal Cases

This blog article is about "rolling over!" No, I'm not referring to dogs rolling over on the grass. I'm talking about the potential advantages to a defendant in rolling over in a criminal case against his or her co-conspirators!

This topic was a big news item this past week when ponzi king Bernie Madoff's chief financial aide, Frank DiPascali, entered a guilty plea in federal court and reportedly agreed to "roll over" against others allegedly involved in their investment fraud scheme which ripped off investors of billions of dollars.

Every criminal case is different, but the old adage is often true that "the first to squeal gets the deal." The truth is that our criminal justice system promotes this practice of defendants "rolling over" on each other, as part of the plea bargaining process. For example, prosecutors will often focus on the "lower rung" defendants in a conspiracy and offer them a deal if they will cooperate against their higher ups. The point is that, in many cases, (especially if you can't beat the rap), it is often advantageous for a defendant, (after consulting with his defense attorney), to take the deal and squeal.

In federal court, there may be real incentives for a defendant to cooperate with the government. For example, if a defendant faces criminal charges carrying tough mandatory minimum sentences, the only way for him to avoid that mandatory minimum, (aside from beating the rap), is to cooperate and convince the federal prosecutor to file what is known as a "5K1.1 motion." This motion, filed by the government on behalf of defendants who have provided "substantial assistance" in the investigation of others, allows the sentencing judge to "depart downward" below the mandatory minimum sentence. So, "rolling over" is a big part of our criminal justice system and ratting on others has its rewards.

Do you believe defendants rat on each other more today than they did 25 or 50 years ago? Is there still left any "honor among thieves?!"