Constitutional Law | Criminal Law | Law
Center on Global Governance
In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"
"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."
"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."
"So talk to him," the prosecutor said. "Find out where he stands, and call me."
* * *
"Look," the prosecutor said, "you know I can't answer that. I never know what the boss is going to want me to do. So why kid each other. My guess, my guess would be we ask for some jail if he pleads, and a lot of jail if he doesn't."
"So he's got to talk," Clark said.
"Nope," the prosecutor said, he doesn't have to do a damned thing except decide which he wants to do more, talk and make somebody important for us, or go down to Danbury there and get rehabilitated."
"That's a pretty tough choice to make," Clark said.
George Higgins, the Balzac of our contemporary criminal justice system, here confronts Eddie Coyle and his friends with the prototypical dilemma of a criminal defendant. A potentially severe sentence faces Coyle. The price of leniency is cooperation with the prosecution. The cost of cooperation is the prospect of a violent retaliation if the party against whom the defendant informs learns of his assistance. Cloaking this bartering process is the language of rehabilitation, a rhetoric mocked by all and yet the common idiom in which the haggling is conducted. To the hard-nosed realist like George Higgins, this is the way the world works. Little fish implicate bigger fish; big fish must turn on still larger ones. If somewhere a defendant resists and refuses to trade evidence for leniency ("stand-up guys," in Higgins's parlance), he will serve long stretches of time in the penitentiary (as did G. Gordon Liddy).
John C. Coffee Jr.,
"Twisting Slowly in the Wind": A Search for Constitutional Limits on Coercion of the Criminal Defendant,
Sup. Ct. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/538