Battle Over Truth in a He-Said/She-Said at the Texas Commission on Judicial Conduct: Texas ‘Justice’ and a Democratic Socialist Judge

Wednesday, June 7, 2023, I attended an hour-long Texas Commission on Judicial Conduct hearing. It was the first one I’ve ever attended. The few that are held are typically private. This one, however, was public – at the demand of the judge who is being targeted for sanctions.

This Commission is made up of lawyers, judges, and civilians, and they are responsible for overseeing Texas judges. They are empowered to sanction judges.

The target of the hearing, Judge Franklin Bynum, demanded that the hearing be public, and I was invited to attend.

I want to tell you about that hearing because I believe in transparent government, and injustice gives me indigestion. And, more selfishly, because I am a Democratic Socialist, too.

First, I’ll explain what Judge Bynum stands accused of doing. Next, I’ll give a short opinion about why I think Judge Bynum is being targeted, followed by an opinion about how TOUGH ON CRIME judges are not often subject to the same treatment. Then, I’ll explain why I think the public needs to know about this.

The Accusation:

Judge Bynum spoke at length during the hearing, and here is the gist of his testimony, interspersed with some background facts:

After COVID hit in March of 2020, Judge Franklin Bynum in Harris County Criminal County Court at Law #8 – like all the courts – switched to a Zoom docket. The attorneys and their clients, accused of misdemeanor offenses, would appear remotely via Zoom.

There are many agencies that participate in a criminal court. The sheriff’s office handles security. The clerk’s office handles the official record keeping. The probation department keeps track of the defendants that have pleaded or otherwise have been convicted and are being supervised. The prosecutors from the district attorney’s office, of course, handle the prosecution side of the litigation.

In Harris County, the courtrooms are massive. Houston is Texas’s largest city, and the courthouse reflects the size of the courts’ dockets. Ordinarily, COVID-free, a Harris County courtroom can contain hundreds of people. During the initial stages of the COVID shutdown, however, a mere skeleton crew was allowed inside those courtrooms, with most of the participants appearing by Zoom.

As Judge Bynum explained during his temporary sanction hearing, he had representatives physically present in his court from all the usual agencies that play a role in a criminal courtroom – except for prosecutors from the Harris County District Attorney’s Office.

The Harris County District Attorney’s Office refused to send prosecutors to the massive courtroom, where they would have had many multiples of 6-feet worth of space around them. Judge Bynum received some communications that the prosecutors’ refusal to send people in person caused extra work for those actually present. Clerks, for example, who are not employed by the DA, were doing some of the ADAs’ work.

Judge Bynum sent an email to the DA’s office about this staffing issue. He offered a large jury room for them to set up in alone to accommodate health concerns. The DA not only refused but accused Judge Bynum of trying to kill prosecutors and their families.

The email that Judge Bynum referred to as a staffing email, triggered communications with the Regional Presiding Judge, who urged Judge Bynum to withdraw his “order” for the prosecutors to appear in court. Judge Bynum took the position that he never issued an “order,” as judges don’t issue orders by email. He sent a staffing email, not an “order.” Judge Bynum did not threaten the prosecutors with contempt for violating the staffing email.

Over the course of a week or so, Judge Bynum and the Regional Presiding Judge had several phone conversations. During one of those conversations, the Regional Presiding Judge told Judge Bynum that the Chief Justice of the Texas Supreme Court wanted Judge Bynum off the bench.

Fast forward through the rest of the COVID pandemic, through the 2022 election, which Judge Bynum lost (he is no longer on the bench in Harris County).

After the Harris County District Attorney initiated a grievance with the Texas Commission on Judicial Conduct against Judge Bynum, a conversation between the Regional Presiding Judge and Judge Bynum came up, wherein Judge Bynum recalls the Regional Presiding Judge stating that the Chief Justice wanted Judge Bynum off the bench.

The Regional Presiding Judge then initiated a separate grievance against Judge Bynum with the Texas Commission on Judicial Conduct, alleging that either the phone call never happened, or it is false that the Regional Presiding Judge ever made statements that Judge Bynum said she said.

Judge Bynum’s accuser was not in attendance at the hearing, Wednesday, June 7th. She was not required to testify. Judge Bynum had no opportunity to cross examine her.

During the June 7th hearing, Judge Bynum was asked to agree or disagree with the Regional Presiding Judge’s allegations. Judge Bynum disagreed that he ever issued any “order” via email. He also testified that the Regional Presiding Judge did in fact say that the Chief Justice of the Texas Supreme Court told her that he wanted Judge Bynum off the bench.

Apparently, no one from the Commission has asked the Chief Justice for a statement, nor did he appear to testify.

During the hearing, one of the few members of the Commission that asked questions, demanded to know if Judge Bynum told the media about this issue. The question about whether Judge Bynum gave a statement to the media was accusatory in tone, the questioner sternly frowning.

Note, when I arrived at the hearing room, the door was covered with signs indicating that it was a private meeting, even though Judge Bynum had demanded that the hearing be made public – multiple times.

Why Bynum?

He’s a Democratic Socialist. That’s why. Texas judges are expected to maintain LAW AND ORDER. They’re expected to be tough on crime. Judge Bynum ran on a platform opposing mass incarceration and opposing plea mills. Unlike many lawyers that run for criminal court judge, Bynum has never been a prosecutor. The Regional Presiding Judge is a former prosecutor.

The Harris County District Attorney’s Office and more conservative members of the Harris County community took aggressive stances against Judge Bynum during his tenure on the bench..

While he is currently off the bench, via democratic means, Judge Bynum can run for reelection in the future if he so chooses – unless – the Texas Commission on Judicial Conduct takes action that prevents him from doing so, overruling hypothetical future democratic processes.

And, so, while Texas Commission on Judicial Conduct sanction hearings are rare, it is not surprising to me that the Texas judicial establishment would target Judge Bynum for Speech.

Here’s why I think you should know:

I reread George Orwell’s novel 1984 a few weeks ago. It had been years, and I wanted … well, I’m not sure why I needed to reread it. I’m glad I did, though.

“War Is Peace. Freedom Is Slavery. Ignorance Is Strength.”*

This tripartite is the motto of government that dominates life in 1984. The main character, Winston, is a lower-level government worker, whose job is re-writing history so that the government is always is right, always has been right, and always will be right. If anything in a newspaper article written years before does not match up to the present ‘reality’ dictated by the government, Winston changes that old newspaper article to reflect the ‘truth’ the government wants to impose, and all old copies are destroyed by fire. For example, Winston’s country is always at war – either with Eurasia or with Oceania. But the government requires everyone to believe and say that they’ve always been at war with whomever they are currently at war. If they’re currently at war with Oceania, the old newspaper articles referencing war with Eurasia must be changed to say that they were at war with Oceania in that past era. Truth be damned – the truth is what the government says it is.

One of the many points of 1984 is that a fascist government does not merely control the physical bodies within its borders, it also controls ‘truth’ and history, as it polices the thoughts of its subjects to ensure absolute conformity of thought, to in turn ensure absolute docility and submission to the few privileged people in power.

We are blessed to live in a Constitutional Republic. On the national level, we are protected by the First Amendment: “Congress shall make no law […] abridging the freedom of speech, or of the press.” In Texas, our right to speak our mind is protected by Article I, Section 8 of our state Constitution: “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”

I twinge when anyone – especially anyone sharing my own political persuasion – urges limitations on our right to Free Speech.

The reason I twinge is that there are very few methods of resistance for working people, even in a country with a relatively high degree of ‘freedom,’ compared to other countries. Yes, voting is important, and we should all defend our own – and each others’ – right to vote. That said, there are few good choices at the ballot box. Often, we find ourselves voting for the ‘lesser of two evils.’ Further, because there are so many governmental positions to vote for, most of us don’t know much – or anything – about the people we are voting for. I’m not pointing fingers at anyone but myself, here. I am usually only informed on about 10-15% of the races on a ballot. I rely on recommendations from newspapers and other organizations, with whom my worldview and values align.

We usually don’t know, as we cast our ballot, if the person we vote for is going to behave in a manner that we approve of once they are elected. Compounding our ignorance, after they achieve their position, we often don’t know how they are behaving at all, unless the media covers them for some reason.

If we don’t know much or anything about the person we voted for, and the media is not covering their behavior after election, what tools are left to try to ensure accountability for that elected official?

The medias – both the established media and social media – are an incredible method of resistance for The People in our country. When there is a power imbalance, and someone is abusing their power, shame and ridicule are tools that working people can use to try to change the behavior of those who hold positions of power.**

We need Free Speech as a means of deploying the tools of shame and ridicule.

How do shame and ridicule work in favor of The People in our country? Well, here’s an example:

Elected Official X wants to keep their job. It comes with a good salary, benefits, power to affect change in the community, and prestige within their community. Elected Official X, therefore, maintains good relationships with the local media in the hopes of keeping favorable coverage, ever with an eye to the next election. If members of the electorate, however, witness Elected Official X committing bad acts, they can take to social media to express their outrage or concerns. In this way, they circumvent the local media, over whom they have less control than Elected Official X. Journalists for the established media, however, do monitor social media, and they can take up stories found there. If any ambitious individuals in the community want to run for office, they can use any bad establishment or lay press as grounds for running against Elected Official X. In this way, shame and ridicule – either published in official sources or on social media – can function as a powerful tool to ensure accountability for elected officials.

The right to speak to the press and give them information is a precious one, and I twinge whenever anyone suggests it should be limited. We live in a Constitutional Republic, and I don’t want anyonewho holds power using their own power to limit what can and cannot be said about themselves, ever. Government officials, with their coveted jobs at stake, should not get to control what people say about them (with some limitations – see New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).

Judicial races are especially problematic. Out of all the members of the voting public, lawyers that have practiced with the candidates, or who have litigated cases in those judges’ courts, know the most about particular judicial candidates.

There are consequences, however, for speaking out against a judge that is either bad at the job or abuses their power in some way. Lawyers carefully cultivate relationships with judges, contributing lots of money to campaigns. They know that their treatment in court on future cases may depend on it. Lawyers that speak out against a judge may very well face a hostile work environment the next time they have a case in that judge’s court. (Pro-tip: If there are lawyers speaking out about a judge, they perceive that the judge is politically weak and won’t be there long).

I’ll give you a personal example: I filed a grievance with the Texas Commission on Judicial Conduct against a judge, whose name I will not repeat here, in part, for threatening defense lawyers with contempt for making valid and legally correct objections during a trial. I took issue with a judge misusing the contempt power to silence a defense attorney and prevent him from doing his Constitutionally mandated job.*** Later, I had an expunction assigned to that same judge’s court. Expunctions are easy-peasy-lemon-squeezy. Either the State is opposed to it, and you have a hearing, or they’re not opposed, and the judge makes sure the person’s entitled to the expunction and signs the order. When there is no opposition, an expunction hearing takes seconds. This expunction was not opposed. The person was entitled to the expunction. I just needed a judge’s signature for the client to clear their good name. The judge, however, recused her/himself from the case on the day of the signature because of the grievance I filed. The client, therefore, had to wait for a judge’s signature, delaying their ability to clear their name. The recusal was not necessary – I didn’t ask for it, nor did the State. If the judge had signed the expunction, all records would have been destroyed. My act of speaking out, however, cost that client additional time of reputational damage. I suppose the judge had a duty to recuse him/herself if s/he felt biased against me for my grievance, which speaks volumes.

Lawyers, therefore, for both selfish and altruistic reasons don’t speak out against bad judges very often.

Okay, so if lawyers don’t speak out in the established media or lay media, how is the public supposed to know which is the ‘lesser of two evils’ on their ballot when they vote for the candidates running for the bench?

One way, for a particularly determined individual that wants to know everything about the candidates, would be to check the Texas Commission on Judicial Conduct’s website for public reprimands and sanctions against incumbent judges.

The problem with that, however, is the Commission does not take action against many judges. Moreover, unless the Commission takes particular types of action, any complaints against the judges are secret.

Secrecy is the enemy of democracy, and Texas judges are elected.

Remember, the hearing against Judge Bynum on Wednesday, June 7th, was behind a door that started out papered with signs that it was a private meeting – until Judge Bynum demanded that they be removed. He demanded a public meeting more than once upon his arrival before the signs were removed.

Judges that are TOUGH ON CRIME enjoy a more privileged position than Democratic Socialist Bynum.

Consider the actions of Judge George Gallagher of the 396th District Court in Tarrant County and his treatment by the Texas Commission on Judicial Conduct. During the trial of Terry Morris, Judge Gallagher “ordered his bailiff to electrocute the defendant three times with a stun belt – not for legitimate security purposes, but solely as a show of the court’s power as the defendant asked the court to stop ‘torturing’ him…” Morris v. State, 554 S.W.3d 98, 102 (Tex. App.—El Paso 2018). This quote is not mine – it is taken from the El Paso Court of Appeals decision on Morris’s case. Other judges characterized Judge Gallagher’s actions in this way.

What did the Commission do about it? Judge Gallagher received a “Public Warning.” He tortured a defendant in his court for no legitimate reason, and he was “warned.” Judge Gallagher remains on the bench in Tarrant County.

Still more intriguing about the Judge Gallagher case, the Commission made an interesting finding in its Order: “The trial court’s record is devoid of any description of a security threat.” The reason this finding is interesting is because Judge Gallagher testified to the Commission that “the sole reason he ordered the activation of Mr. Morris’ stun cuff was for security purposes but admitted this was not fully apparent from the record of the proceedings.” The Commission noted that “Judge Gallagher acknowledged the contemporaneous record of the proceeding does not reflect” the security threat that Judge Gallagher later referred to, after the fact. Judge Gallagher produced seven people that were in the courtroom that day to provide statements that supported his “security threat” reasoning for electrocuting the defendant, including the defendant’s own lawyer.

Despite the factual issue there, the Commission did not find that Judge Gallagher provided a false statement in his testimony. But if his testimony was believed, and the Commission believed there was a bona fide security threat, would the Commission have publicly warned him? It seems wrong to publicly warn a judge for taking steps to control a security threat in his courtroom…

Judge Gallagher is not a socialist.

And – after writing this piece, I will never appear in that court, believe me!

Now, back to Judge Bynum. He said – and had extrinsic evidence supporting it – that the Regional Presiding Judge made a certain statement to him that the Regional Presiding Judge now claims never happened. This is a he-said/she-said, and the ‘she’ was not required to appear or testify under oath, Wednesday, June 7th.

Ultimately, as the process unfolds, what’s at stake for Judge Bynum? First, the Commission can strip the title “judge” from Bynum such that he can no longer use the title. He otherwise keeps it for life, even though he is off the bench. Second, they can prevent him from running for any judicial office, ever again. Further, there is the potential for this situation to implicate Judge Bynum’s law license. According to the Texas Disciplinary Rules of Professional Conduct, which lawyers are required to follow, “[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Tex. Disc. Rule 7.01, Comment 11.

Conclusion:

I’m terrified.

Will writing this piece and publishing what I saw and heard on June 7th, coupled with my opinions, result in retaliation? It is possible.

But if we don’t exercise our First Amendment rights, we will lose them. There is too much at stake.

I look around the state of my birth, and I see State-level actors wrestling control from progressive cities. I see The People democratically electing more progressive district attorneys, who refuse to prosecute low-level drug crimes, as city councils rein in their police departments from enforcing drug laws, and then State-level actors overruling urban voters and sending in troops to enforce drug criminalization. I see the State of Texas seizing control of the largest Independent School District, spitting on local democracy, taking control of the education system of one of the most diverse places in Texas, after years of political battles over what ‘truth’ may be told in schoolbooks, as radical politicians want to refer to slavery as “involuntary relocation.”

I see democracy eroding. I see a never-ending battle for what constitutes ‘truth’ and how we frame our history.

Wednesday, June 7th, I saw a State entity go after a former judge, who is a Democratic Socialist, for Speech.

In that he-said/she-said dispute, how is credibility to be determined? Will Judge Bynum’s politics make him less credible than the Regional Presiding Judge (a former prosecutor) for a Commission that merely publicly warned Judge Gallagher for torturing a defendant and did not call Judge Gallagher a liar, even though the official record of the proceeding did not support his testimony?

I see a battle over ‘truth’ in Judge Bynum’s case, with an entity that ostensibly wanted to keep the issue secret, whose members appeared upset that Judge Bynum had commented to the media about it …

And I am terrified.

*Orwell, George. (1949). 1984. Harcourt Brace Jovanovich, Inc. (reprint 1st Ed.).

** An anthropologist, James C. Scott, wrote about this in his book Weapons of the Weak, Everyday Forms of Peasant Resistance. (1985) Yale Univ. Press (1st Ed.).

***The Commission took no action against the judge.

No, the Snitch Doesn't Feel Bad About It, But They're Not a Bad Person, Even So.

A few weeks ago, I posted a blog piece about understanding betrayal when preparing for trial in a case involving snitch testimony. Today, I want to address our - defense attorney’s - attitudes when cross-examining the snitch, and when preparing the client for this part of the trial. Bottom line: Forgive them, they know not what they do.

Clarifications About the First Piece on Betrayal and Snitches:

I hope that one thing in the last piece was clear: Snitches are not necessarily hateful, nor are they necessarily bullies, nor are they bad people. They’re human, nothing more, nothing less. Snitches can be anyone, including good, hardworking, productive people. Snitching is a social, not individual, phenomenon. I’ll address why it is important to keep the humanity of the snitch in the forefront of our minds a little later.

But – Millie – you used the word “betray” in your last piece. “Bad people” betray their friends and family, right?

No. Everyone has betrayed a friend or family member, in some way, at some time. Small betrayals may be as simple and mundane as saying something unkind about a friend to a third party, or repeating our friend’s words to a third party that does not have our friend’s best interests at heart.

Dear Reader, let us be honest with each other: We have either done that ourselves, or we have tolerated it when another has gossiped in our presence. Gossip is a small betrayal, and precious few of us are above it. Forgiving ourselves for our trespasses against others is a good first start to break our habit of gossiping, but to forgive ourselves, we first must acknowledge that we have sinned in that way.

So – no, snitches are not necessarily bad people. Gossip is a bad habit, but those who gossip are capable of changing their behavior and being better. Circumstances are important. A person might not say something unkind about their friend to a complete stranger, but may say it to a boss at work with whom they are trying to ingratiate themselves.

Further, betrayal is relative. For example, a recipient’s failure to respond to a text message or phone call may not register on the texter/caller’s radar as being a thing, let alone a negative thing rising to the level of betrayal. For someone that was abandoned by their parent as a child, though, the ignored call or text may feel like an enormous betrayal if they have not worked through their abandonment issues.

Law enforcement understands these gradients of betrayal, starting with gossip, when working on snitches and potential snitches, and so we must understand the thought processes as practitioners.

 The Slippery Slope of Betrayal:

Small betrayals pave the way for larger ones. For snitches that are close friends or family members of our clients, law enforcement may have persuaded them that the small betrayal was morally righteous by telling the snitch negative things about our client, which may or may not be true. Law enforcement is legally permitted to mislead people during their investigations. Persuading the potential snitch that our client is “bad” in some way triggers small betrayals, in conjunction with the snitch’s natural inclination to submit to an authority figure. Once there is a small betrayal, snitches are lubed-up to slide down a slippery slope into much greater acts of betrayal – the kinds of actions that we want to associate with “bad people.” For example, the snitch who betrayed Black Panther Fred Hampton to Hampton’s death killed himself when the depth of his betrayal was about to become public knowledge.

Trial tactic tip: The jury should hear about anything that motivates the witness to testify falsely. If law enforcement tainted the snitch witness early with false information about their target, the jury needs to hear about that. In a murder trial I helped with, I talked to the jury after. Most of them were surprised to hear that law enforcement was legally allowed to mislead the client with false statements to encourage him to confess. Juries want to hear this type of information – don’t deprive them of it.

 Politicking, Across Species:

When law enforcement inserts themselves between a potential snitch and their target – straining or cutting family or friendship ties in the process, they are employing a strategy that is as old as time and applies across species. Fundamentally, it is politicking.

Zoologist Konrad Lorenz coined the term “mobbing” to describe his observations of bird behavior. Since Lorenz’s work, others have applied the same principles to human aggression in group settings. (The following studies on animals are discussed in depth in Dr. Janice Harper’s book ‘Mobbed,’ cited below).

With birds, if a lone or unfamiliar bird tries to join a new flock, the other birds will join in to attack the newcomer – pecking and swooping down at it. The longer the attack goes on, the more birds will join the attack. Poultry farmers will recognize this type of behavior, as chickens have a pecking order and the most vulnerable chicken in the flock will be pecked and subjugated and prevented from eating first, and the bullying will be instigated by an alpha – a rooster.

Primatologists have identified the same type of politicking behavior in rhesus monkeys. Consider Dario Maestripieri’s book Macachiavellian Intelligence: How Rhesus Macaques and Humans Have Conquered the World. Maestripieri discusses how when one victim macaque was attacked by a bully, the victim’s friends (the other monkeys that usually had sociable interactions with the victim) joined the bully in attacking the victim.

“Buddy [the victim macaque] has spent every day of his life in the enclosure with all the other monkeys. They all eat the same food and sleep under the same roof. … They were there when he was born. They held him and cuddled him when he was an infant. They have watched him grow, day by day, every day of his life. Yet, that day, if the researchers had not taken Buddy out of the group, he would have been killed [by his friends].” (Maestripieri, 2007:4,5).

The weakest macaques are the first to join in the attack, specifically the lowest ranking females “because they finally have somebody they can dominate and finally get the chance to express all of their aggression and frustration they have repressed in a life spent at the bottom of the hierarchy.” (Maestripieri, 2007:87).

Wolves will also single out weakened members of their pack for prolonged harassment. The initial attack by the pack is almost always instigated by the pack’s alpha wolf. See R.D. Lawrence’s In Praise of Wolves (1986).

“For solitary species (e.g. the mouse), aggression is a solution to the problem of keeping others away. But for highly social species like primates (including humans), aggression is one solution to the challenges of group living. For these species, aggression is a tool that group members can use to define complex social relationships […].” (Niehoff, 1998:56).

 Now, for Humans, Politicking & Creating Snitches:

Those with power in our society are the alphas. Those with the power to strip people of their freedom, or kill, are indisputably alphas. We certainly live in a complex society with a complex social order. When a member of law enforcement, with handcuffs and a gun on their belt, describes someone as a “criminal,” or as a “felon,” they start the process of locking our clients into a plummeting societal elevator that crashes into the very bottom of our pecking order, with few below them.

Psychologists have studied how this plays out among humans. Philip Zimbardo designed and executed the Stanford Prison Experiments. People were randomly assigned to be either a guard or a prisoner. Perfectly normal people that were randomly assigned to play the role of guard not only became increasingly aggressive, but were arbitrary in doling out punishment, and exhibited pleasure in humiliating those randomly assigned to be prisoners.

The “guards” also began to rationalize their aggression and sadism as being deserved by the “prisoners,” who in reality outside of the experiment were no different from the “guards”. And, after the experiment, the “guards” expressed no remorse for their behavior.

In turn, the perfectly normal people randomly assigned to be prisoners became enraged, confused, and ultimately defeated.

Stanley Milgram in 1963 carried out psychological experiments to determine whether Americans were as likely to be “Good Nazis” when an authority figure instructed them to electrocute their fellow human beings. Almost all of the test subjects were willing to impose an electro-shock of sufficient wattage that it could kill a person (had someone actually been receiving the shocks). Most of the normal Americans in that study, who were willing to electrocute other people to the point of inflicting serious injury or death in what they knew was just a psychology experiment, expressed little remorse after-the-fact. (All of these examples are discussed at length in Janice Harper’s ‘Mobbed.’).

Psychological Foundations of Snitching:

When talking to a potential snitch, law enforcement instinctively puppets the snitch’s traits and behaviors fundamental to the human psyche and have also been documented in other social species. These traits and behaviors include 1) submission to authority, 2) an unlimited ability to justify actions that don’t comport with being a trustworthy person, and 3) erring on the side of pleasure and avoiding pain.

1)   Submission to Authority:

By merely approaching the potential snitch about their target, law enforcement very basically, very fundamentally, signals to the potential snitch that the target/client has run afoul of the alphas in our society. Approaching the friend or family member alone transmits this signal. Most people want to go along to get along. They want to be left alone to live their lives, work, play, and raise their families. They want to get ahead in their careers and be proud of themselves.

Learning that someone close to them has run afoul of law enforcement necessarily triggers their fears that they may be next if they help the target. Merely contacting a potential snitch triggers the pleasure-pain principle. “If I help law enforcement, I appease the alpha, which can be beneficial for me. If I decline to help, the alpha might punish me, and I’ve seen how bad that can get. I better do what the alpha says.”

People’s political views, religious affiliations, and stated value systems have no effect on how they will behave when an alpha starts politicking with them. “No matter what their politics or principles, religion or beliefs, they will act against” another person if they believe the alpha’s problem will become their own problem. Mobbed (J. Harper 2013:35).

Pressure from law enforcement alone can provide sufficient motivation for the snitch to lie about our clients when the snitch is a particularly vulnerable person. Jurors need to hear about how much pressure was placed on the snitch to start snitching. Jury selection may be a good time to start a discussion about submission to authority and the pleasure/pain principle.

 2) We Are All Good & Moral People, Right?

We all want to believe that we are good and moral people. There’s a demonstrated and proven psychological phenomenon called the “self-enhancement” effect. When rating ourselves over our fellow humans, we all think we’re more/better, in every way.

Beyond these positive attributes, to an even greater degree, we all think that we are more moral and trustworthy than our fellow humans. Sure, there are Lannisters, who don’t concern themselves with the opinion of sheep, and worry not at all about relative morality. For them, might makes right. Most of us, though, believe we are morally superior to our peers, and we care about that valuation. We want other people to agree that we are moral people.

Cognitive dissonance is the phenomenon whereby we become uncomfortable when the facts don’t match our ideals/beliefs/values. Humans innately resolve that discomfort with after-the-fact justifications. Thus – the Good Nazi defense.

The internal process goes like this:

 —> I am a good person —> I was just pressured by an alpha to hurt my fellow human being —> This doesn’t jive because good people don’t hurt their friends and family —> Well, I did it because I had to because that former friend asked for it, or is a criminal, or doesn’t deserve to be treated well because she did this negative thing to me that one time, or --- Insert whatever reason that will allow the person to again feel good about themselves, having done something questionable.

I urge fellow practitioners to leave behind these value judgments of good/bad/moral/immoral when preparing for trial. The people involved in our cases – witnesses, clients, jurors, lawyers, and judges – are human. They betray some. They lift up others. They are kind under certain circumstances. They are cruel under others. The circumstances play a greater role in determining the behavior than the individual’s traits or beliefs.

The State will point their finger, stomp their feet, and pound their pulpit.

Be the calm in that storm. Be objective. Acknowledge the humanity of the State’s witness that knew your client since he was a child and told law enforcement all his darkest secrets. But give the jury all the evidence showing the snitch’s motivations to betray your client and motivations to lie on the witness stand.

If you did a good job in jury selection, you have people in the box that want to believe they are moral, just, and fair. Give them the facts upon which to base a moral, just, and fair verdict.

3)   Pleasure/Pain Principle & The High of Dominance:

As the Stanford Prison Experiments and Stanley’s Milgram’s experiments show, normal people will not only jump on the alpha’s bandwagon to hurt other people, but they’ll also get some jollies doing it.

Remember the female macaques, who “finally [had] somebody they [could] dominate and finally [got] the chance to express all of their aggression and frustration they have repressed in a life spent at the bottom of the hierarchy.” (Maestripieri, 2007:87).

Any criminal law practitioner knows how good it feels to utterly dominate an adverse witness on the stand, turning their testimony into good points for their client’s side. Dominating others feels good. It especially feels good for those who dwell in the bottom strata of our society, who are bullied by store-owners, the police, and sometimes their own families. The feeling of having power over another can be likened to a drug-induced high.

As the mere contact by law enforcement can trigger the person into becoming a snitch for fear of retaliation or fear of being a target of their own hellish investigation, there is a pleasure in siding with the alpha and hurting someone they know and maybe even love. Carrots and sticks, colleagues, carrots and sticks.

Final Thought on How This Applies to the Snitch:

There are monetary perks to being a snitch. Sometimes they get a new car. Black Panther Fred Hampton’s snitch got a start in a new business and avoided prison. There are psychological perks to being a snitch. Ganging up on someone and being part of the powerful group feels good. Lawyers should know all motivations for snitching to prepare for cross-examination.

The Client’s Psychology Matters, Too:

Your client will not want to believe that so-and-so betrayed him. Cognitive dissonance will set in for the client, too.

“I’ve known so-and-so forever. We love each other like brothers. He hugged my neck the last time I saw him. He couldn’t have betrayed me…”

When reality sets in, the client will refuse to believe that he and the snitch were ever close and will question all their prior interactions, long before the snitching. This is the bargaining phase of grief.

Grieving the loss of friendship or familial relationship hurts. The process is not really different from the death of a family member. Denial, negotiation, and anger are stages of grief.

Ever tried a case where your client faced life in prison and your client vomited into a court trashcan before jury selection? Help your client go through the grieving process before trial, counseling forgiveness and explaining all of our humanity to him. Don’t ignore the client’s feelings before trial. Your client is not going to be at his best during trial. He’s going to be an emotional wreck in the middle of the fight-or-flight response. The truth is, it is possible law enforcement lied to the snitch about your client. If appropriate to the case, you may point out to the client that the betrayal may have been procured by fraud. It may help the client process their grief.

On top of the fight-or-flight response, you don’t want the client stewing in the anger phase of grief, staring daggers at the snitch on the witness stand in front of the jury. No matter how innocent the client, jurors may interpret obvious rage as a sign of guilt and dangerousness. Keep in mind the fight-or-flight response in stressful situations (like trial), cognitive dissonance, and the excruciating pain of betrayal when you’re preparing your client for trial.

Hopefully, your client can forgive the snitch and compartmentalize the love he used to have for the snitch before you have a jury in the box.

Finally, colleagues, defense work is hard. It is made hard by human beings that know not what they do. Forgive them all.

“Jail-House Snitches”: Cultural & Psychological Factors to Consider When Preparing for Trial

Betrayal is part of the human condition.

It is a popular topic in our society’s fiction. Winston in Orwell’s 1984 swore to never betray his love. When Big Brother physically and psychologically tortured him, however, he absolutely betrayed her and would have betrayed anyone to make it stop. Shae betrayed Tyrion on the television show Game of Thrones for less sympathetic reasons, Daenerys was frequently betrayed, Theon betrayed House Stark and the man who was like a brother to him, and perhaps worst, Sansa was horrifically betrayed by Little Finger for Little Finger’s pleasure and ambition. Harold betrayed the morally righteous in the hopes of gaining power in Stephen King’s The Stand. And, of course, the story of Judas is often invoked when betrayal is used as a trope – consider Lecter’s Dante Alighieri lecture in Thomas Harris’s Hannibal.

For brevity’s sake, let’s call the witnesses we are discussing here ‘snitches.’ A snitch might be someone that is specially placed by law enforcement in their target’s path to gain the target’s trust for the purpose of ferreting out information.

A snitch may also be someone that is already close to the target (a family member, friend, acquaintance, or co-worker), who law enforcement is able to persuade to assist them in their investigation and is vulnerable to law enforcement pressure for a variety of reasons.

Those vulnerable to law enforcement range from very kind humble individuals to more nefarious characters. Every human being has triggers and vulnerabilities. Amongst Russian secret police, the term kompromat has long been used, referring to compromising information that can be used to blackmail, discredit, or manipulate someone.

Some people cannot be forced to betray another human being absent significant pressure. For example, Winston in 1984 would not have betrayed his one and only love without significant physical and psychological torture. Others, however, will betray another human being for the fun of it because it makes their sad inner child feel powerful.

And there are a wide variety of factors that affect one’s likelihood of betraying people, between those extremes of “make the torture stop” and “let’s have some fun at this person’s expense.” Arguably, the ideal snitch for law enforcement is someone that is simultaneously compromised and whose personality is compatible with this type of behavior.

Trial Tactic Tip:

Knowing the snitch’s motivations ahead of trial is important. Motivations to lie are fair game during cross-examination. Often, though, the motivations are not readily apparent from the State’s disclosures.

If there are recordings of the interactions between the snitch and the target, look for signs of enjoyment. If the snitch is enjoying the exercise, they might be rather sad individuals that were disrespected as children, feel powerless in their lives, and relish the opportunity to spread misery to enjoy a brief ‘high’ of exercising power over another person.

If there are signs the snitch isn’t enjoying themselves, look for compromising information that might be used by law enforcement to force the snitch to cooperate. Is the snitch in this country legally? Do they have children they’d be forced to leave behind if deported? Does the snitch have children they are concerned may be turned over to CPS? Is the snitch facing significant prison time themselves for their own crimes?

A lawyer should carefully scrutinize the snitch and their interactions with the client for their motivations. This needs to be done in advance of trial to inform the lawyer’s themes during jury selection, and of course, to properly craft cross-examination.

Video evidence of the snitch-client interaction is invaluable. Is the snitch smiling and making eye contact during the interaction? If so, the snitch is enjoying their petty power. In contrast, is the snitch avoiding eye-contact and appear exhausted and sad?

Not All Snitches Are Jail-House Snitches:

Law enforcement can find or create snitches anywhere. Whether the target is in the county jail or circulating in the free world, there are fairly easy strategies for enlisting the aid of a snitch.

When clients cannot make bond and are forced to remain in the county jail, there are many ways law enforcement can gather intelligence on the client, including listening to their jail phone calls, watching surveillance footage, and placing other cooperating inmates in the client’s path.

While the county jail is an ideal place for law enforcement to gather information on a target, it is not terribly difficult to place a snitch in someone’s path in ‘the free world.’

Social media provides law enforcement with easily accessed (lawfully and without a warrant) information on a target’s friendship and professional network. Further, it is not at all difficult for law enforcement to simply follow a target, note who they meet, and then gather information about the target’s contacts from license plate numbers – again, all lawfully without a warrant.

Once the target’s network is identified, law enforcement can easily access the networks’ criminal history (including pending charges), their relationships with suspect organizations, any and all pending litigation (like, for example, CPS, divorce, child-custody, and other cases), among other records that can be accessed without a warrant. In a pinch, law enforcement can simply follow members of the target’s network around, initiate traffic stops for mundane traffic code violations and go fishing (with few limitations).

If a target’s social network lacks individuals ripe to transform into snitches, law enforcement can place snitches in their target’s path on dating websites, at club meetings, or other social functions. Of course, law enforcement can both transform the target’s existing social network and utilize strangers as snitches.

Again, using social media or information gathered from surveilling the target, law enforcement can feed the snitch information about the target’s likes and dislikes so that the snitch can make it appear that they have many things in common with the target, creating an artificial bond, and cultivating the target’s trust. This is called fake mirroring. The fake similarities may be as mundane as carrying around a water bottle, food choices, or exercise habits.

Consistent with the concept of kompromat, the snitch will be instructed to tell the target about illegal or immoral things the snitch has done in their lives in order to build trust. The idea is that the target will be lulled into believing that they have compromising information on the snitch so that the target is comfortable sharing their own darkest secrets. Of course, the snitch has no exposure for their own wrong doings per law enforcement, and so does not worry that their wrong-doings may be used against them. It is not kompromat if law enforcement does not care about it, even if utterly illegal and/or morally reprehensible.

Trial Tactic Tip:

Lawyers preparing for trial should investigate how exactly the snitch was originally connected to the client and how law enforcement made initial contact with the snitch. For a client in jail, this information is easy to discover: There is a clear record of which inmates are in proximity to the client, what their criminal charges are and potential prison-time, and some record of the initial contact between client and snitch. These types of snitches are less credible witnesses because of their obvious bias in stopping or shortening their own incarceration.

In the ‘free world,’ however, it may be more difficult to determine how law enforcement created the relationship with the snitch. A thorough conversation with the client is necessary to suss this out, where the lawyer patiently listens to what may be rather tedious personal details recited in a jumbled manner.

Biochemical Interference with Attorney-Client Communications:

Most clients are in extreme distress, fearing for their freedom and future. They are further distressed if they are held in custody pending trial. Jail is not “three hots and a cot,” it is a stressful and dangerous - sometimes deadly - place. Further, clients charged with criminal offenses often had rather traumatic childhoods and are already easily triggered. The combination of the stressful situation with the client’s psychology can make it quite difficult for the client to communicate clearly and linearly.

The adrenaline that comes with the client’s fear interferes with executive functioning. This biochemical interference can prevent the client from providing linear, organized, historical details. Clients can appear disorganized because their brains cannot sustain the fight-or-flight response and think rationally. Lawyers must be patient. The truth is in there somewhere, but it requires a lot of listening.

If the snitch is someone the client has known longer than law enforcement’s investigation, the client’s history with that person may take a while to learn and understand. This information, however, is essential to preparing for cross-examination and crafting trial strategy in presenting the snitch’s biases and motivations to the jury.

Trial Tactic Tip:

Remember, betrayal is a common trope in our culture. Every single juror has been betrayed by someone they trusted (it is not betrayal unless there was trust). They will want to hear about the snitch’s motivations, biases, and kompromat to evaluate the snitch’s credibility. Do your homework so that you can give the jury the information they need to make this credibility determination.

And Remember Divide-And-Conquer:

Finally, as a small aside, snitches are not only valuable to law enforcement for intelligence-gathering. There is a psycho-social effect on the snitch when they betray someone that trusts them.

In 1984, Orwell explains the effect through his main character Winston. When Winston betrays the only woman he ever loved, that love was destroyed. Stated differently, Winston could no longer love because he had betrayed that love. The action affected the feeling.

The shame of betrayal destroys positive pro-social feelings between the snitch and target. Sowing distrust inside the jails is a valuable tool to prevent organization that could undermine law enforcement control.

Divide-and-conquer is a cliché for a reason. While this tangential motivation to employ snitches may not be useful for most case strategies, it is nevertheless something to keep in mind. There may very well be cases where this is important.