"It''s about mitigating damage"
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"It's about mitigating damage" is the phrase John Kiriakou credits with persuading him to accept a plea agreement rather than go to trial in 2012.

The refusal

After the government's offers had fallen, Kiriakou describes a descent from forty-five years to ten, then eight, then five, then three and a half, his team countered with a year, and the government said it would go to two and a half as best and final. Kiriakou had twenty-four hours. He and his wife stayed up all night, and he decided to turn it down, reasoning that he had done nothing wrong and that once he was in front of a jury they would see how ridiculous the case was. He emailed the team at six in the morning to say he had been up all night, had read all the literature, and was refusing.  

The response

His lead attorney, Plato Cacheris, replied, in what Kiriakou says were his exact words, "You stupid son of a bitch, take the deal." Two other lawyers then weighed in; one said they were on their way to his house and told him to put a pot of coffee on. Kiriakou describes these as the two men on the team he liked and respected most. He had eleven attorneys, among them the head of the white-collar defence practice at Akin Gump.  

The sentence that decided it

One of them took him aside and said that if Kiriakou were his own brother he would beg him to take the deal. Then came the line Kiriakou says did it: "You know what your problem is? Your problem is you think this is about justice and it's not about justice. It's about mitigating damage. Take the deal." 

Kiriakou took the deal and served twenty-three months. 

Why the team took the case

Asked what had drawn attorneys of that standing to him, Kiriakou answered that they believed he had been wronged and said so outright, that this was a political case, brought because he had blown the whistle on the torture programme. 

The odds behind the advice

Retelling the scene in 2023, the four attorneys arriving at the house at dawn after he emailed to say he was refusing the best-and-final offer, and the three successive arguments that broke him, Kiriakou prefaced it with an apology for repetition, "forgive me if I've told this story too many times," and closed it with the statistics that make the advice arithmetic rather than pessimism.

"That's what they expect. That's why, according to ProPublica, the federal government wins 98.2 per cent of its cases, and in the Eastern District of Virginia they win 99.1 per cent of their cases. You don't have a chance. You can't win."

His own position going in had been the opposite, and he calls it naive in retrospect: "I believed in my heart that I was innocent ... once I get in front of a jury and I explain what happened, they're going to see how ridiculous these charges are."

The ladder, and the morning after

Kiriakou gives the sequence as a descent: facing 45 years, "they offered 10, then eight, then five, then three and a half, then two and a half." His lead attorney told him the direction of travel was itself evidence, in fifty-two years at the bar "I've never seen them come down in time. Usually, if they offer you 10 and you say no, then they offer you 12, then 15, then 18", and drew the conclusion that they should go to trial.

He and his wife stayed up the night the best and final offer arrived and decided to refuse it. He emailed the lawyers at six in the morning. All three were at his house by seven, and he put on a pot of coffee.

The lead attorney was blunt: "You stupid son of a bitch, take the deal." The one he liked and respected most got in his face with the argument that actually moved him, "You know what your problem is? Your problem is you think this is about justice, and it's not about justice. It's about mitigating damage. Take the deal." The third, "really very much a southern gentleman," said "If you were my own brother, I would beg you to take this deal."

What settled it was a number. Asked what conviction at trial realistically meant, the answer was "12 to 18 years. Take the deal." Ten years on he accepts the reading without reservation: asked whether it was absurd to think he would have won, he answers "Yeah, it is absurd... I didn't have a chance. I didn't have a prayer to win that trial", and adds that the lawyers had known it.

See also

- Plato Cacheris
- Eastern District of Virginia
- The Sentencing Remark
- Federal plea coercion
