The Tim Flaherty Federal Prosecution: The Dilemma Involved

DuckLast week I traveled to Boston to see what was going to happen at a status conference in the case of Tim Flaherty.  That case is pending in the federal court of Boston. Few people were at the hearing. The magistrate set some dates for filing motions and scheduled another conference date for December.

The gist of Flaherty’s case is he is charged with the felony of attempting to interfere with an FBI officer in his investigation, a crime that carries a twenty year penalty. His crime was telling a guy who was sitting next to an FBI officer that he should ignore the request of the FBI officer who asked him to call him. It was a set up. There was no way Flaherty could interfere with the FBI officer’s investigation because the guy was already working with him. However, the statute he violated states it is a crime to “attempt” to interfere with an investigation.

The federal court is Boston is a very strange and scary place. Even in the most notorious cases the court does not allow its proceedings to be televised and broadcast to the general public. So much of what happens there is hidden from view.

What makes it very, very scary is the game that goes on. I never defended anyone there in a criminal case so I’ve only been able to pick this up in bits and pieces. There is the usual plea bargaining as goes on in the state courts. I must admit I engaged in it all the time. I suggested I would recommend one type sentence if the person entered a plea of guilty and another more severe one if he went to trial. The only rationale I could come up for doing that was if I had victims it saved them the necessity of reliving the event; or, if the person admitted the crime rather than going to trial and trying to beat it then he should receive some consideration for that repentance.

I was never really comfortable with doing it. It would seem a person deserved the same sentence whether he pleaded guilty or exercised his right to a trial. The sentence should relate to the crime and the person’s background and not what happens thereafter in court. If a crime is horrific, and the person a career criminal, and he should get 20 years why would you give him 10 if he pleaded guilty?

From what I see of federal court that is what happens all the time. Usually the choice will be some type of probation (hitting the street) on a plea or some form of incarceration after trial. The disparity is often great and the defendant has a huge incentive to admit guilt even when innocent.

What compounds the problem a defendant has in Boston’s federal court is that beyond the enhanced sentence for going to trial the defendant is discouraged from testifying for himself. I’m told that if the judge does not like the way the person testifies then he can increase the person’s sentence based on that alone. In addition, anyone who testifies can expect that the prosecutors will send agents out in force to investigate every little thing the person ever did to try to use it to impeach him.

I have no idea of the status of the discussions in Flaherty’s case nor do I want to know. I do see however that a 50-year-old lawyer like Flaherty with a wife and kid would view the idea of going to prison as something to avoid at all costs. I also figure that in his type case he would know that the only way to defend himself would be to testify but doing so could add years onto his sentence if the judge doesn’t take to his testimony.  He would know if he pleaded guilty he could hit the street even but such a plea would cost him his law license.

It is not a happy situation to be in. Many who are innocent have chosen to make a plea of guilty to avoid prison. The federal prosecutors count on it. But many who have taken that way out have rued their decision as time passed. Put yourself in Flaherty’s place, if you can, and ask yourself what would you do.