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The Essence of the Flip

  By James Palombo     Politics Editor  In watching the news over the past weeks I was struck by a reference to President Trump’s former lawyer Michael Cohen and the possibility that he may “flip” on his most cherished client. In brief, a guest-host lawyer pointed out that anyone (and he stressed “anyone”) would do the same if they faced twenty years in prison. What bothered me about the statement was the fact that four decades earlier I was asked to “flip” while facing forty years in prison. On that occasion, which stemmed from my involvement in the heroin business, I was given the chance to cut short my imprisonment by agreeing to testify against others further up the illegitimate opportunity structure and/or by actually going to work for law enforcement by continuing with my career in the drug trade as an informant. Even after several of their attempts, which included reminding me that they would also interfere with any future parole possibilities, i.e., basically assuring me that I would serve my full time, I simply couldn’t bring myself to the level of being a “rat.” In short, I responded that although I appreciated their offers I had to respectfully decline, punctuating my refusal with the always handy middle finger (a flip of my own) and a “go fuck yourself anyway!” I must admit that as I continually snubbed the federal and state agents I did have some reservations. After all forty years is a long time.  Nonetheless I stayed the course, and because of some legitimate legal issues, I eventually received a ten-year prison sentence with twenty years of probation. And almost exclusively due to the development of a then unforeseen post-secondary education program initiated during my incarceration – from which I graduated with honors from the state university with a degree in political science – I received a parole in my first attempt. This was despite the objections of my law enforcement counterparts who continued to argue that as a public service I simply needed to do more time.  (Thirty years later, with several graduate degrees in hand as well as a number of sound career accomplishments, I would receive a full pardon from the state of Nevada.  On this point I’ll add that although it’s in his powers what our President is now doing in terms of dealing out pardons seems to cheapen the real value of having actually earned one.) Given my experiences I think you can understand why I was slighted by the guest-lawyer’s “anyone would flip” comment. But what is more significant to this piece is that the comment got me thinking about other realities that surround “the flip,” realities that may not be so clear to the general public, but realities that are part and parcel of today’s crime-fighting efforts. For one, “the flip” is a tool that is very useful in the context of detecting criminal activity.  It serves to give law enforcement a chance to shake the tree, so to speak, creating a vast network of “snitches” who as a rule of thumb decide to work for the police in lieu of conventional types of prosecution. (Does the Mueller investigation ring a bell?) This of course provides the police with a wide-swath in determining whom to pressure and whom to arrest. Although this discretion can be seen as problematic in terms of overzealous and/or corrupt police behavior, “the flip” has nonetheless become standard operating procedure. Said another way, “the flip” has become normalized as an occupational tool for the cops and an occupational hazard for those involved in crime.  (In terms of the accused, saving one’s hide can be fashioned into some sense of moral awakening. In other words, in seeing the error of one’s ways, a person can present himself as a whistle-blower of sorts, helping the police rid the community of the real culprits causing the real problems. It may be hard to detect the veracity here but, as is often the case, so be it. And I can’t help believe, especially as things get more dicey, that this may be the direction that Mr. Cohen chooses to take.) “The flip” also speaks directly to the plea bargaining power of the district attorney/prosecutor in about 90% (that’s right, 9 out of 10) of criminal cases.  In this context it’s this office that holds the most power in the criminal justice process. This power relates to the ability to issue indictments, to charge defendants with more or less severe crimes, to suggest the length of time to be served, or that no time be served, or that time be served in the community, or that a fine gets imposed in lieu of time, or any combination thereof. In effect, then, the DA is often both judge and jury in most criminal proceedings. It’s important to note that the wrangling that occurs in the plea bargaining process between the defendant and the prosecutor (some argue that it is not unlike the negotiations in car buying) often brings into question elements tied to the offender’s cash, class and color.  These elements, often linked to police discretion and the issue of profiling as well, have a corresponding influence on the nature of any defendant’s presumed innocence or guilt.  After all, it’s clearly no secret that the more money one has and/or the more standing one has in the community the less likely he/she will feel the full ire of the system. And of course it’s again no secret that the color of one’s skin carries its own set of problems as to what might happen in the system. (The three C’s – cash, class and color – are also more than evident in terms of who ends up in prison. Open any prison door to see that the overwhelming percentage are poor and/or of minority status.) So there is a lot tied to the essence of “the flip.” Unfortunately much of it sounds a bit corrupt or at the least a bit “off the mark” in terms of principles like justice, fairness and equality.  But it’s the reality and has been for quite some time.  And as the O.J. Simpson’s lawyers made evident years ago, this lack of justice, fairness and equality in the criminal justice system (perhaps better termed the criminal response system, by the way) can be used in all kinds of ways, even as a defense in the face of murder charges. As a final point, and although this might take considerable gall (which let’s be honest, is spread pretty thick these days) the “lack of principles in the system” may in fact represent another deflecting tactic for Michael Cohen. In other words, it seems fair to ask how investigators might locate something as tenuous as “the truth” in a system so lost in the murky swamp known as criminal justice.  In this light it could be argued that it’s the swamp that is in need of prosecution, not Mr. Cohen. And if this sounds eerily similar to the President’s insinuations given his own set of problems it’s because it is. Along these lines consider that Mr. Cohen may also subscribe to what’s implied by his former boss’s “art of the deal.” To the point, Cohen may employ “the flip” based on the notion that any astute player should know when to hold ’em, when to fold’ em, and when to simply throw the other guys under the bus.  
  About the author: Politics editor James Palombo’s work focuses on issues related to social, political and economic concerns in the U.S. and abroad. He is the author of several books, the most prominent being his autobiographical discourse, “Criminal to Critic: Reflections Amid The American Experiment,” Rowman and Littlefield Publishers. The book chronicles his experiences from drug dealer and convict to social worker, professor, world traveler and public policy advocate. While continuing to travel, he divides his time mainly between Endicott, New York, and San Miguel de Allende, Mexico.   Illustration: Thomas Deisboeck.