What Would Happen if Prosecutors Never Flipped Defendants?

With all the recent high-profile discussion of “flipping defendant’s” I thought it might be interesting to discuss what “flipping” really means and how it affects a defendant and the criminal justice system.

When a prosecutor begins to unravel a criminal conspiracy, from the smallest agreement between a few people, to enormous, multijurisdictional operations, often the only witnesses with direct knowledge of the crimes—who did what, when, where, why, and how—are other criminals implicated in the scheme.

Think of “flipping” as starting at the base of a pyramid. Most crimes involve people who are involved along a spectrum; some are more involved than others. “Flipping” normally refers to a prosecutor offering a “better deal” to those at the bottom of the pyramid, on the lower end of involvement in the crime; the goal is to get critical information that can lead to convictions about the more involved, higher on the pyramid suspects. It’s a tried-and-true tool of law enforcement and investigative prosecution.

The prosecutor’s goal is to have the lower level defendants provide as much information as possible about what they did, and the conduct of others more involved then themselves. Cooperation almost always requires a person to plead guilty, and give up all information about people “bigger” than themselves – prosecutors often don’t care about information about other defendant’s at the same level of culpability as a cooperator – they want the “bigger fish.” If the defendant is helpful, then the prosecutor is in a position to recommend a lesser sentence for the cooperator when they are sentenced.

Cooperating can involve giving information to a prosecutor; it can also involve undercover phone calls, recorded meetings between the cooperator and the target; it can involve testimony in front of a grand jury.

“Flipping” is how prosecutors for decades have disentangled the operations of gangsters and mob bosses, white-collar money movers, drug offenders, and political scandal. Prosecutors took down Al Capone, John Gotti, Enron, and Bernie Madoff by using cooperators. 

So, if no one ever “flipped” or if flipping were outlawed as suggested by President Trump on August 23rd it would make prosecuting a vast amount of crimes much more difficult. The President’s comments focused some on the “morality” of ratting out others involved in the same crime: it is certainly a question of ethics for some; but most decide at the end of the day they would rather give others up to try for a lesser sentence.

All across the country, people paying attention to politics have become better versed in the language associated with flipping a defendant; the predictable and methodical process of plea deals and witness testimony from those with intimate knowledge of crimes. Flipping a co-defendant or target is such an effective tactic for prosecutors it is important to understand how it works. Those arrested in cases where there are still not under arrest people even more heavily involved often find the first set of questions they are asked by law enforcement is about what others did. Think of Henry Hill in “Good Fellas.”

One thing to keep in mind is cooperating without counsel is a bad idea. Cooperation agreements should be in writing, protecting a suspect who cooperates so the prosecutor can then not go back on the deal. There are many types of “flipping” and many benefits it can bestow; you should have counsel with you at the time the decision is made – even if the decision is not to cooperate, so that consequences are clearly understood. It goes without saying anyone in this position should engage an attorney.

If you find yourself involved in a law enforcement action where your interests may be at stake—whatever role you may or may not have played—do not leave yourself disadvantaged, without anyone to advocate on your behalf. Contact a criminal defense attorney as soon as practicable, day or night.

Have more legal questions? Feel free to contact my office for help. I am also more than happy to answer your questions by cell at 714-381-1366 or @ bob@hartmannlawfirm.net

Chase Geiser