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On flipping, Trump is right for the wrong reasons


What you’ll read today 

  • Spotlight: On flipping, Trump is right for the wrong reasons

  • California could soon end money bail, but at what cost?

  • Prosecutor pursues murder charge for woman who defended herself from abuser

  • San Francisco will forgive and waive court fees

  • Florida judge says setting high bail to detain people is unconstitutional

  • Economists say guns, not crack, to blame for violence of the ’80s and ’90s

  • Relatives of Mollie TIbbetts call for conservatives to stop using her death for political gain

In the Spotlight

On flipping, Trump is right for the wrong reasons

“I know all about flipping,” President Trump told “Fox & Friends.” “For 30, 40 years I’ve been watching flippers. Everything’s wonderful and then they get 10 years in jail and they—they flip on whoever the next highest one is, or as high as you can go.” That tool “almost ought to be outlawed. It’s not fair,” Trump said. It creates an incentive to “say bad things about somebody … just make up lies.” [Associated Press / MPR News]

Trump was referring to Michael Cohen’s decision to take a plea deal on fraud charges and admit to prosecutors that he paid off two women to stay quiet about sexual affairs they claimed to have had with Trump. “If somebody defrauded a bank and he’s going to get 10 years in jail or 20 years in jail, but if you can say something bad about Donald Trump and you’ll go down to two years or three years, which is the deal he made,” Trump said, “in all fairness to him, most people are going to do that.” Trump also tweeted that the White House counsel Donald McGahn, would never sell out his boss like a “John Dean type ‘RAT.’” Mr. Dean, whose testimony as White House counsel about Watergate helped bring down President Richard Nixon, responded by tweeting that Trump “thinks, acts and sounds like a mob boss.” [Mark Landler / New York Times]

It came out this week, too, that federal prosecutors have reached an immunity deal with the tabloid executive David J. Pecker, a key witness in their investigation into payments to the two women who said they had affairs with Trump. Pecker is the chairman of American Media Inc., the nation’s biggest tabloid news publisher, which was involved in the payments that prosecutors say were illegal campaign contributions. Mr. Pecker’s cooperation is, according to the New York Times, “another potential blow to the president from a former loyalist.” It is still not clear whether prosecutors gave Pecker immunity for his role in the campaign contributions, or agreed not to prosecute him in exchange for information. It is possible that Pecker could still face scrutiny. [Jim Rutenberg, Rebecca R. Ruiz, and Ben Protess / New York Times]

When Rudy Giuliani was working as a United States attorney, his office was labeled the “House of Pancakes” for the number of suspects who “flipped” to try to reduce their prison sentences. The practice is an integral part of prosecutions, especially in the federal system. Preet Bharara, who was the U.S. attorney for the same office until Trump fired him, underscored how important the practice is in a tweet:

Writing for the Washington Post, former federal prosecutor Ken White called Trump the “most recent convert to the criminal defense cause” on account of his newfound realization that flipping can lead to injustice. “Trump’s right, but for the wrong reasons,” he wrote. “America’s criminal justice system routinely coerces defendants to cooperate and incentivizes them to lie to please prosecutors. But most victims aren’t presidential confidants accused of bank fraud. The vast majority of people who confront the choice between cooperation and a longer sentence are poor and uneducated.” White points the finger at the underfunding of indigent defense and the money bail system, both of which make flipping more coercive. Unlike Cohen, most cooperators don’t know the defendant well, and are frequently jailhouse snitches notorious for fabrications. But there are “no reliable methods in place to track repeat cooperators or to ensure that evidence undermining their credibility is turned over to the defense, and very few prosecutors face consequences for withholding information that impeaches their witnesses.” [Ken White / Washington Post]

“If we want fairness for both the cooperating defendants and the people they implicate—if we want faith in the results—we need serious reform,” White writes. We have to think about how poverty drives cooperation and how the system fails to police itself, he added. We should also “examine the vast power we’ve given prosecutors, who through unreviewable and usually opaque charging decisions can have even more authority than judges over a defendant’s sentence. Federal prosecutors could flip Cohen because they had broad discretion to charge him with dozens of crimes or none; they alone decided how sweet a deal to offer and how ugly the alternative was.” Most difficult, he said, we must question our culture. “Our vision of the criminal justice system is based not on reality, but on Nixonian rhetoric and Dick Wolf’s endlessly televised stories of heroic law enforcers fighting against shifty defense lawyers and sociopathic defendants,” he writes. “In short, flipping works because the culture tells us to trust prosecutors, police and even cooperators uncritically. Only a civic culture of healthy skepticism of prosecutors’ claims—a genuine appreciation for the concept of reasonable doubt—can change that.”  [Ken White / Washington Post]

Stories From The Appeal

California Assembly Member Rob Bonta, an Alameda Democrat,
discussed Senate Bill 10 at a recent press conference. 

California Could Soon End Money Bail, But at What Cost? The passage of Senate Bill 10 would decimate the bail industry, but many advocates say it falls short of true reform. [Max Rivlin-Nadler]

Prosecutor Pursues Murder Charge for Woman Who Defended Herself From Abuser. Jacqueline Dixon shot her husband to death in Alabama—a “Stand Your Ground” state—after she said he charged at her. He had a history of domestic violence. [William C. Anderson]

Stories From Around the Country

San Francisco will forgive and waive court fees: Under a new order by the San Francisco Superior Court, the county will waive and forgive about $32 million in court fees from about 21,000 people. San Francisco was the first county in the country to waive such fees. “We should be actively helping people to get their lives back on track after they have paid their debt to society,” Mayor London Breed said in a statement. “Garnishing the wages of people facing the challenging task of securing employment and housing can make that impossible.” The fees were intended to cover the costs of criminal justice programs but a government inquiry found that more than 80 percent of the bills went unpaid, so the city did not benefit significantly. The city estimates it will lose about $1 million annually. [Trisha Thadani / San Francisco Chronicle]

Florida judge says setting high bail to detain people is unconstitutional: A North Florida federal judge said the practice in Leon County of setting an unaffordable bail as a way to keep defendants in jail is unconstitutional. “It seems that the state is operating an unconstitutional system in Leon County,” U.S. District Judge Robert Hinkle said at the federal courthouse in Tallahassee. “If there is no legitimate basis to detain the person, then setting up unaffordable bail is unconstitutional. Unaffordable bail is detention by another name.” These judges and prosecutors were doing what has historically been done, the judge added. Hinkle did not make a ruling on the case but instead asked an ACLU attorney to determine by October how many defendants in the Leon County Detention Center remain there because they can’t pay bail and could qualify to be included in the class-action lawsuit. [Karl Etters / Tallahassee Democrat]

Economists say guns, not crack, to blame for violence of the ’80s and ’90s: Two new academic papers question the theory that crack cocaine caused the violent crime wave of the 1980s and early 1990s. The drug theory posits that dealers used violence to defend their businesses, and users committed crimes to feed their addictions. But the economists behind the new papers say that this can’t fully explain why the spike in crack use was so deadly, or why murders fell in the mid-’90s. “Instead, they argue, a boom in handgun production and possession gave the crack years their fatal character—until new restrictions on firearms reversed the trendlines,” according to The Trace. “What’s striking about the gun market is you get these surges in production,” said economist Geoffrey Williams. “The production booms were followed by surges in killings.” [Alex Yablon / The Trace]

Relatives of Mollie TIbbetts call for conservatives to stop using her death for political gain: Samantha Lucas, the second cousin of slain Iowa student Mollie Tibbetts, said that her cousin would not have wanted her death to be used as “fuel against undocumented immigrants.” Cristhian Rivera, whom authorities have claimed is undocumented, was arrested and charged with murder this week. His lawyer has disputed the claim that he is undocumented. Shortly after the arrest, President Trump called Rivera an “illegal alien.” In response to a tweet from conservative Candace Owens, Lucas replied: “Hey, I’m a member of Mollie’s family and we are not so f–king small-minded that we generalize a whole population based on some bad individuals.” Billie Jo Calderwood, Tibbetts’s aunt, also spoke out: “I don’t want Mollie’s memory to get lost amongst politics,” she told CNN. [Aris Folley / The Hill]

Thanks for reading. Have a great weekend.

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