Professional Responsibility in Criminal Defense Practice

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1 Professional Responsibility in Criminal Defense Practice WW w. LawofCriminalDefense. com by John Wesley Hall, Jr. Criminal Defense Lawyer Previously published as Professional Responsibility of the Criminal Lawyer (1st ed. 1987; 2d ed. 1996) n- '..-.1 Mat # THOIVISOIM ^ WEST For Customer Assistance Call

2 TAL RESPONSIBILITY "or the crime creise counsel sought to imitting shooting; it lave known of staterformance). aders v. Ratelle, 21 )n of separate prime L247, 1252 (9th Cir. Chapter 15. -'';: ;"' \,\ "'^ ','.' / ' Ethical Duties in Plea Discussions Research ;References vvww.lawofcriminaldefense.com Text References, '. Am! Jur. 2d, Criminal Law 60q to 769 West's Digest References Criminal Law <S=>261 to 301 ^ KeyCite ; Cases an(i other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw. Use KeyCite tp, check citations for form, parallel references, prior and later history, aiid comprehensive citator information, including citations to other decisions and secondary niaterials. L INTRpDUCTION 15:1 Introduction ' :., IL GENERALLY:" 15:2 Duty to explore diversion of the case > \v,,. 15:3 Duty of candor between attorneys in plea discussions,, ;; 15:4 Prosecutor'si duties in plea discussions,.< '^ 15:5 Publicity regarding possibility of plea III. DEFENSE COUNSEL'S DUTIES 15:6 Generally,,-. f, :.,., 15:7. The duty to negotiate,,- ;} -,.:. 15:8 Duty to fully advise the client ' 15:9 "Conflicts of interest in plea bargaining.- 15:10 The client who maiiitaiiis innocence 15:11 Advising whether to cdbperate or become inforinants 15:12 The Moral Contmdrum of Representing the Rat L INTRODUCTION 15:1 Introduction In the halls of justice... the only justice is in the halls ' '.: Lenny Bruce i Plea bargaining is a necessary part of the criminal justice 629

3 15:1 PROFESSIONAL RESPONSIBILITY ETHICAL DUTIES system. It is apparent to all in the criminal justice system that 95% of all cases, both state and federal, are disposed of by guilty pleas.^ Plea bairgaining obviously has a great influence on this. To be induced to accept a guilty plea, the accused must usually have something to gain by doing it. In 1977, the Supreme Court said in Blackledge V, Allison:^ Only recetitly has plea bargaining become a visible practice accepted as a legitimate component tn the administration of criminal justice. For decades it was a sub rosa process shrouded' in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges. Indeed, it was not until our decision in Santobello v. Nevy York, 404 U.S. 257, that, lingering doubts about the legitiriiacy of the practice were finally = dispelled.^.,, In Santobello v. Nexv York"^ the Supreme Court said: Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable piart for many reasons, tt leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confineirient for those, who'are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pre-trial release; and, by shortening the time betweeni charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.^ Whatever the merits or demerits of plea bargaining, it is a necessary evil in the American system of criminal jilstice. The system supposedly would collapse under its own weight without it^ but this may not necessarily be a valid assumption. Both prosecutors and defense counsef have a duty to explore [Section 15:1] 'Brady v. U.S., 397 U.S. 742, 753, 90 S. Ct. 1463, 25 L. Ed. :2d 747 (1970). Comment, Plea Bargaining IVIishaps The Possibility of Collaterally Attacking the Resultant Plea of Guilty,.^65 J; Crim. L. 170 (1974); D.A. Jones, Negotiation, Ratification, and Rescission of the Guilty Plea Agreement; A Contractual Analysis and Typology, 17,r)u{iuesne L. Rev. 591, 592 (1978)., _ Under the pressure to plead guilty, for sentencing concessions under the U.S. Sentencing Guidelines, in some districts the plea rate is 97-98%. ^Blackledge v. Allison, 431 U.S. 63, 76, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). ^Blackledge, 431 U.S. at 76 (footnotes omitted), citing Santobello v. Neiv York, infra. "Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). ' ' ^ ^Santobello v. New York, supra, 404 U.S. at 261 (footnotes omitted), citing Brady v. U.S., 397 U.S. at :. ^Eliminating plea bargaining in some jurisdictions (most notably Alaska) disposition ofa I into a plea agr^ ^ Plea bargaii I ments for all ^ greater on def( i can result in : tions, malpraci f IL GENERA f 15:2 Duty l I If the nature I counsel shoul [ diverted.from \ duty in the; ex( l has not had a gi - Alaska's Ban on : A.B.A. J. 26 (198! I Also, experie: [ ing Guidelines at ; the number of tri i creative in thei: I downward depari \ number was agai ; trial in. the fc \ imconstitutioinal : ^See 15:2i 'See 15:4, : ^For ineffecth ; conflict of interes \ '"See 31:13. \ [Section 15:2] I ABA Stds., 1 ; Whenever the ; should explore tl i cess through the [ 'ABA Stds., '. \ Prosecution, >1 [ I In determiii: I factors should be \ The nature an ; Any special ch [ Whether the d i Whether ther< ; from the diversi( \ Whether an a-' i 630

4 X RESPONSIBILITY ice system that sed of by guilty ence on this. To [st usually have eine Court said ble practice aeration of crimishrouded' in seig defendants, eed, it was not U.S. 257, that ice were finally ' id: not only an espart for many osition of most )act of enforced ^-ho are denied those accused uct even while )etween charge ; rehabilitative aprisoned.^ ling, it is a necice. The system without it, but duty to explore d. :2d 747 (1970). of Collaterally At- 1974); D.A. Jones, lea Agreement: A 1,592(1978)., ; sessions under the 19,7-98%., 52 L. Ed. 2d 136 Santobello v. Neiv 30 L, Ed. 2d 427 tes omitted), citing st notably Alaska) ETHICAL DUTIES IN PLEA DISCUSSIONS 15:2 disposition of a case without trial either by diversion' or entering into a plea agreement.. Plea bargaining now has constitutional and ethical requirements for all the attorneys involved. The burden is obviously greater on defense counsel. Failure to follow these requirements can result in ineflfective assistance claims, reversal of convictions, malpractice,^" and even professional discipline. II. GENERALLY 15:2 Duty ib explore diversion of the case If the nature and circumstances of the case warrant it, defense counsel should explore the possibility that the case can be diverted from the criminal process.^ Prosecutors also have such a duty in the exercise of their prosecutorial discretion.", has not had a great impact on the number of guilty pleas. See Rubenstein, Alaska's Ban on Plea Bargaining ih Plea Bargaining (1980);' Lawscope, 69 A.B.A. J. 26 (1983)..«' Also, experience showed that mandatory minimums and the U.S, Seritencing Guidelines at first caused only a slight increase in the number of trials'but the number of trials then declined as prosecutors and defense lawyers got more creative in their crafting plea agreements to seek to tak^ advantage of downward departures. Already a system marked by its'lack'of jury trials; the number was again cut by two-thirds. Frankly, there are penalties for going to trial in the federal system, and everybody knows it..yet, it is not unconstitutioinal. :. ;! 'See a5:2. ' ;, -.. : ;. : ^ 'See 15:4, 15:6. ^ - ^For ineffective assistance issues in plea bargaining, see 10:26-10:27. For conflict of interest issues, see 14:22. -''-'' ^ See 31:13. ; [Section 15:2] ABA Stds., The Defense Function, Std (a): V Whenever the la^, nature, and circilihstances 6f the case permit, defense counsel should explore the possibility of an early diversion of the case from the cximinalpro- - cess through the use of other community agencies. ' '. 'ABA Stds., The I?rosecution Function,. Std ; see Principles of Federal Prosecution, U.S,^.Attorney's Manual,, , 9-27.,600-.,630, specific hyperlink in 1:12. '. In determining whether tp agree to diversion of a defendant, the following factors should be considered: _,., The nature and severity of the offense;,. ' ', ' Any special characteristics or difficulties of the-offender;, V Whether the defendant is a first-time offender; i: Whether there is a probability that the defendant wiu cooperate with and benefit from the diversion program;. - Whether an available program is appropriate to the needs of the offender; 631

5 15:3 15:3 'PROFESSIONAL RESPONSIBILITY Duty of candor between attorneys in plea discussions Both sides to plea discussions have a duty of ppennessv and candor, and a prosecutor or defense counsel "should not know-' ingly make false statements concerning the evidence in the cburse of plea discussions with" opposing counsel.' This rule derives from the ethical duty not to'kiiowihgly misstatelaw or fact to a' court or any person.' Observation: Candor in plea discussions is essential for all lawyers involved.'' Lack of caiidor frustrates future dispositions by plea since attorneys will be reluctant to enter into plea ; s discussions with other attorneys they no longer trust,^ ; Statements inade by defendants, defense lawyers, and'prosecutors during plea discussions are not admissible in evidence The impact of diversion upon the community; Recommendations of the iavolved law enforcement agency;, r Whether the defendant is likely to recidivate;.consideration for the opinion of the victim; Provisions for restitution; and.,., Any mitigating.circumstances.,, NDAA, National Prosecution Standards Std [Section 15:3] i ''B. Gamer & J. Pettyj A Plea for Opermess in Plea Bargaining, 16 Gonzaga L. Rev. 81(1980). Comment: Lawyers generally have a duty of fairness and openness. See Ch 3. 'ABA Stds., The Defense Function, Std. 4-6,2(b); ABA Stds., The Prosecution Function, Std (c). See In re Shafir, 92 N.J. 138, 455 A.2d 1114 (1983). 'RFC Rules 3.3(a), 4.1; CPRDR 7-102(A)(5); Cal. Bus. &; Prof. Code 6068(d). See Gleason v. Title Guarantee Co., 300 F.2d 813 (5th Cir );,Monroe v. State Bar of Cal., 55 Cal. 2d 145,.10 Cal. Rptr. 257,, 358 P.2d 529 (1961); In re Brown, 279 S.W.2d 773 (Ky. 1955); In re Mohn, 149 Minn., 373, 184 NiWi.l4 (1921); In re Wines, 370 S.W.2d 328 (Mo. 1963). "See Ch 3 on the duties of fairnessy'honesty, and candor. '.' ' 'ABA Stds., The Defense Function, Std ,' Commentary; ABA Stds., The' Prosecution Function, Std , Commentary. ' '- 'Statements iriade to police officers without the power to naake plea agreements are not privileged, but some police officers can hold themselves out as plea bargainers. Compare Rachlin v. U.S., 723 F.2d 1373, 14 Fed. R. Evid. Serv (Sth Cir. 1983) (police ofiicers clearly had no power to bargain at time statement was made) with State v. Hovind, 431 N.W.2d 366 (Iowa 1988) (where officers informed the defendant that'his plea bargain was in jeopardy and read him his rights, he was justified in believing that his ensuing stateriierifs were privileged). ETHICAL DUTIES should the cas Federal proi ment where ai agreement ca: agreement by'. The defense, contradicting 1 to it," inviting up to his or he 'Fed. R. Evid. Manual, Crimina chael H, Graham, See, e.g., U.S: Cir. 1978), on reh 1356, 1367, 3 Fed 1137, (6t Annotation: ^ with plea bargain: 'See Fed. R. C See U.S.'v. S Cir. 1991): Plea agreements, formation that is substantive evide standard plea agr( "No statemen' the govemment impeachment si testimbny matei during the proffi United States v. '. Sept. 21, 1987) (qi signing the plea a purposes of impea *Fed. R. Crim. Serv. 831 (3d Cir. (defendant's admii rape victim witho trial that she cons ^'People V. Jach "U.S. Attomey 1:12; State v. Ch the defendant had "People V. DeB (3d Dist. 1990). 632

6 \L RESPONSIBILITY plea [ openness^ and lould not knowice in the course lis rule derives law or fact to a' s.ential for all e dispositions ter into plea ;;; ust'' rs, and prbsecuble in evidence [aining, 16 Gonzaga 3 and openness. is.. The Prosecution :'rof. Code 6068(d). iir. 1962);, Monroe V. 2d 529 (1961); In re L.,373,,184N:W.,14 ary; ABA Stds.', The ;o iriake plea agree- 1 themselves out as tfed. R. Evid. Serv. to bargain at time (Iowa-1988) (where 1 jeopardy and read ng statemerits were ETHICAL DUTIES IN PLEA DISCUSSIONS 15:3 should the case go to trial.' Federal prosecutors have the defendant sign a proffer agreement where an3d;hing said in the proffer toward an expected plea agreement cannot be used unless the defendant breaches the agreement by later contradicting the proffered statement.' The defense, however, can waive this by: testifjdng and directly contradicting the content of the prior discussion, first testifying to it," inviting it," or testifying that the prosecutor'does not live up to his or her agreements." 'Fed. R. Evid. 410; U. R. Evid. 410; Fed. R. Crim. P. 11(e)(6); U.S. Attorney's Manual, Criminal Resource Manual, 627, in 1:12. See,1 Michael H. Graham, Handbook of Federal Evidence et seq., (5th ed. 2000). See, e.g., U.S. v. Geders, 566 F.2d 1227, 1231, 2 Fed. R. Evid. Serv. 952 (Sth Cir. 1978), on reh'g, 585 F.2d 1303 (5th Cir. 1978); U.S. v. Robertson, 582 F.2d 1356, 1367, 3 Fed. R. Evid. Serv (5th Cir. 1978); U.S. v. Brooks, 536 P.2d 1137, (6th Cir. 1976); U.S. v. DiLoreto, 888 F.2d 996 (3d Cir. 1989). > Annotation: Admissibility of defense communications made in connection with plea bargaining, 59 A.L.R. 3d 441. 'See Fed. R. Crim. P. 11(e)(6); Fed. R. Evid See U.S. V. Stevens, 935 F.2d 1380, 1396, 33 Fed. R. Evid. Serv. 831 (3d Cir. 1991): Plea agreements, for example, commonly contain a provision stating that proffer information that is disclosed during the course of plea negotiations is inadmissible as substantive evidence of guilt, but is admissible for purposes of impeachment. The standard plea agreement provides: "No statements made or information provided by [the defendant] will be used by the govemment directly against her, except for the purpose of cross-examination or impeachment should she be a witness in any criminal trial or proceeding and offer testimbny materially different from any statements made or information provided during the proffer...." United States v. Nemetz, No C, slip op. at 2-3, 1987 WL (D. Mass. Sept. 21, 1987) (quoting a standard plea agreement) (holding that the defendant, by signing the plea agreement, waives the protection of Fed.R.Crim.P. 11(e)(6) for the purposes of impeachment).»fed. R. Crim. P. 11(e)(6); U.S. v.,stevens, 935 F.2d 1380, 33 Fed. R. Evid. Serv. 831 (3d Cir. 1991); State v. Hansen, 194 Mont. 197, 633 P.2d 1202 (1981) (defendant's admission during plea bargain to having intercourse with alleged rape victim without her consent was admissible when defendant testified at trial that she consented). "People V. Jackson, App. 3d 700, 321 N.E.2d 420 (1st Dist. 1974). "U.S. Attorney's Manual, Criminal Resource Manual 627, in 1:12; State v. Christian, 245 S.W.2d 895 (Mb. 1952) (defense counsel asked if the defendant had ever admitted doing the act). ' "People V. DeBeck, App. 3d 15, Dec. 385, 561 N.E.2d 1081 (3d Dist. 1990). 633

7 15:4 PROFESSIONAL RESPONSIBILITY 15:4 Prosecutor's duties in plea discussionsv Plea bargaining by the prosecutor is a part of prosecutorial discretion which should be exercised.' There is, however, no constitutional obligation for a prosecutor to plea bargain with all defendants.^ While prosecutorial discretion in plea bargaining is not generally subject to judicial review, except for some facially improper motive* or conduct,' the prosecutor is subject to disciplinary action for exercising prosecutorial discretion with an irnproper motive.' Comment: State prosecutors are almost always elected officials, and they are thus always cognizant of political influ- ' ences in the exercise of their prosecutorial discretion. Thus, a prosecutor can legitimately choosd to submit a case to a jury ' for resolution rather than plead it out and suff'er the political - consequences of a plea being too lenient for the public. A prosecutor's office should have written policies on the exercise of prosecutorial discretion,' including standards for plea bargaining.' Checklist: The following factors should govern prosecutorial discretion in plea bargaining, and defense counsel should consider them in determining how to approach a possible plea agreement: 1. The defendant's willingness to cooperate in the investigation or prosecution of others; 2. The defendant's history with respect to criminal activ- 3. The nature and seriousness ofthe offense or offenses [Section 15:4] ''A.W. Alschuler, Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50 (1968). 'NDAA, National Prosecution Standards, Std (2d ed. 1991), 'Weatherford v. Bursey, 429 U,S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). "For example, a prosecutor could not use an improper basis such as race, religion, or nationality on which to plea bargain. Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). See also Wayte v. U.S., 470 U.S. 598, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985). 'Prosecutors cannot thi'eaten or overreach the defendant during the bargaining process. See Machibroda v. U.S., 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962). 'In re Rook, 276 Or. 695, 556 P.2d 1351 (1976) (prosecutor's refusal to bargain with defendants as long as they were represented by two particular attorneys was prejudicial to administration of justice and warranted a public reprimand). 'ABA Stds., The Prosecution Function, Std (a). 'See NDAA, Std (2d ed. 1991). ETHICAL DUTIES ch 4. Tl wi CO 5. Tl th 6. Tl 7. Tl 8. Tl : de 9. Tl.,. th 10. Tl 11. Tl pe 12. Tl When a pie; should be reqn lation to the n an adequate f sentence, and' cution of other As much as ated defendan course, some they are not s: be given a pie should be wilh position of casi A prosecute] unless the de circumstances, cuted plea ag ^U.S. Attorne; elaborated upon ii See also ND.A "See DOJ, Prii serious provable c ers the likely sen 1:12. "NDAA, Std. 6 See In re Roo "ABA Stds., T] "ABA Stds., T] 634

8 RESPONSIBILITY prosecutorial, however, no irgain with all bargaining is some facially is subject to retion with an! elected ofitical influon. Thus, a 56 to a jury ;he political lie. on the exercise irds for plea I prosecutonsel should ossible plea ate in the minal activ-! or offenses U. Chi. L. Rev ). Ed. 2d 30 (1977). asis such as race, les, 368 U.S. 448, J.S., 470 U.S. 598, uring the bargain- LO, 7 L. Ed. 2d 473 cutor's refusal to two particular atarranted a public ETHICAL DUTIES IN PLEA DISCUSSIONS 15:4 charged;,. 4. The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct; 5. The desirability of prompt and certain disposition of the case; 6. The likelihood of obtaining a conviction at trial; 7. The probable effect on witnesses; 8. The probable sentence or other consequences if the : defendant is convicted; 9. The public interest in having the case tried rather, than disposed of by a guilty plea; 10. The expense of trial and appeal; 11. The need to avoid delay in the disposition of other pending cases; and 12. The effect upon the victim's right to restitution.^ When a plea is considered by the prosecutor, the defendant should be required to plead to charges that bear a reasonable relation to the nature and extent of the defendant's conduct, have an adequate factual basis, will likely result in an appropriate sentence, and do not adversely affect the investigation and prosecution of others." As much as possible, a prosecutor should treat similarly situated defendants equally in the plea bargaining process." If, of course, some defendants are more culpable than others, then they are not similarly situated and less culpable defendants can be given a plea agreement that others are not. The prosecutor should be willing to consult with defense counsel concerning disposition of cases by plea." A prosecutor should not fail to comply with a plea agreement unless the defendant does so or there are other extenuating circumstances." If the prosecutor breaches a promise on an executed plea agreement, the defendant can withdraw the plea *U.S. Attorney's Manual (A), in 1:12. They are elaborated upon in (B). See also NDAA, Std. 68.1, providing a lengthy but similar list of factors. "See DOJ, Principles for Federal Prosecution Std D(3)(1980). Now, the most serious provable charge that has a factual basis should be filed and that considers the likely sentence. U.S. Attorney's Manual , in 1:12. "NDAA, Std See In re Rook, 276 Or. 695, 556 P.2d 1351 (1976). "ABA Stds., The Prosecution Function, Std (a). "ABA Stds., The Prosecution Function, Std (c). 635

9 15:4 PROFESSIONAL RESPONSIBILITY because the plea lacks consideration.''" A plea bargain is not an offer and acceptance type of contract until actually signed by the parties or entered into before fhe court." If a prosecutor must withdraw or cannot fulfill a condition of a plea offer, that fact should be communicated promptly to the defense." Civility and common courtesy to other attorneys require no less. A prosecutor cannot engage in plea discussions with a represented defendant except with consent of counsel." When dealing with an unrepresented defendant, a recording or writing of the discussions and their result should be preserved to avoid assertions of coercion or undue influence because of unequal bargaining positions.'" 15:5 Publicity regarding possibility of plea^ Publicity by attorneys or police' of the possibility of a guilty plea being entered in a case, including a plea by a codefendant who will turn state's evidence,' is prejudicial to the accused and is ethically and constitutionally prohibited." Observation; It may be required that the defense show that the prosecutor had the power to negotiate in that case. See Zamora v. State, 422 So. 2d 325 (Fla. Dist. Ct. App. 3d Dist. 1982). Practice Aids: Government's Breach of Plea Bargain, 27 Am. Jur. Proof of Facts 2d 133. ^"Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). "Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed; 2d 437 (1984) (defendant accepted plea offer and then prosecutor withdrew it; no due process violation).,. Annotation: /Right of prosecutor to withdraw from plea bargain prior to entry of plea, 16'A.L.R. 4th "NDAA, Std "RPC Rule 4.2; CPR DR 7-104(A); Cal. RFC 2-100(A); ABA.Stds., The Prosecution Function, Std, 3-4.1(b). "ABA Stds., The Prosecution Function, Std (b) & Commentary; NDAA, Std, [Section 15:5] ^See 12:16 for a fuller discussion. 'See 12:23 on the prosecutor's duty to control the public statements of police which could prejudice the accused, 'U.S. V. Thompson, 615 F.2d 329, 5 Fed. R. Evid. Serv (5th Cir. 1980). "RPC Rule 3.6(a); CPR DR 7-107(B)(2); discussed in 12:16. Observation: While these public statements usually are made by prosecutors, it is not unheard of for defense counsel to make them expecting the client to plead, and then have the client or the court ETHICAL DUTIES I III. DEFENS: 15:6 Geherj A criminal de the prosecutor, in plea discuss: the defendant negotiating wi entered, the del Preliminary because it deals 15:7 The du As a general ate a plea as ft reject the plea [Section 15:6] ^Annotation: Ac regarding plea barj See 10:26- bargaining. 'ABA Stds., Th See U.S. V. Th (3d Cir. 1979) (whi showed plea knowi Where no plea U.S., 575 F.2d ). 'See, e.g., Buc Blackburn, 597 F,2 " Cpninient: the subject wi npt^ how;eyer, subject was dis See ABA Stds. [Sectioln i5:7] ''Annotations Ac regarding plea bar] 'Akridge.v. Hoj F.2d 978 (8th Cir. affd, 547 F.2d 116; 424 (1977); People 1980), opinion vacs Schoonover.y. Stat not to negotiate). 636

10 \L RESPONSIBILITY irgain is not an ly signed by the a condition of a )romptly to the ttorneys require IS with a repre- " When dealing r writing of the. to avoid assernequal bargainlility of a guilty y a codefendant the accused and show that the See Zamora v. in, 27 Am. Jur., 30 L. Ed. 2d 427,. Ed. 2d 437 (1984) ff it; no due process 3a bargain prior to $A Stds., The Proseommentary; NDAA, ic statements of po-.225 (5th Cir. 1980). :16. ly are made by to make them nt or the court ETHICAL DUTIES IN PLEA DISCUSSIONS 15:7 m. DEFENSE COUNSEL'S DUTIES 15:6 Generally' A criminal defense lawyer may engage in plea discussions with the prosecutor, although ordinarily the client's consent to engage in plea discussions should be obtained in advance.' Ordinarily, the defendant will be unable to show prejudice by counsel's negotiating without authority because, without a plea being enteredj the defendant cannot usually be harmed by it.' Preliminary plea discussions do not require client approval because it deals with hypotheticals.* 15:7 The duty to negotiate', As a general rule,.defense counsel has no duty to try to negotiate a plea as far as effective assistance of counsel is concerned,' reject the plea ofi'er and the case go to trial. [Section 15:6] '^Annotation: Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R. 4t]i 660. See 10:26-10:27 on ineffective assistance claims relating to plea bargaining. 'ABA Stds., The Defense Function, Std (b)., See U.S. v..thomas, 470 F. Supp. 968 (E.D. Pa. 1979), alfd, 612 P,2d 575 (3d Cir. 1979) (while accused claimed he was unaware uritil time of ple,a, record showed plea knowing and voluntary). Where no plea was entered, the accused can show no prejudice. Buckelew v. U.S., 575 F.2d 515 (5th Cir. 1978); Cousin v. Blackburn, 597 F.2d 511 (5th Cir. 1979).. ' ' ', ' ' ; ' " 'See, e.g., Buckele-yy.v. U.S., 575 'f:,2d,515 (5th Cir., 1978); Cousin v. Blackburn, 597 P.2d 511 (5th Cir. 1979), both cited in the previous note. " Comment: If the client has no intention of pleading, even broaching the subject with the client may create distrust. Defense counsel does i. not, however, have to tell the client who will not bargain that the subject was discussed vifith the prosecutor. See ABA Stds., The Defense Function, Std (b), Commentary. [Sectioln IS:"?]. 9' ''. -- /, '.,','', ^Annotation: Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R. 4th 660. 'Akridge.v, Hopper, 545 P,2d 457 (5th Cir, 1977); Reynolds V; Mabry, 574 F,2d 978 (8tli Cir, 1978); Martinez v, U,S., 411 F, Supp (D.N.J. 1976), aftd, 547 F.2d 1162 (3d Cir. 1977); Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977); People v. Wright, 107 Gal, App. 3d 372,165 Cal, Rptr. 631 (5th Dist. 1980), opinion vacated, 30 Cal. 3d 705, 180 Cal. Rptr, 196, 639 P.2d 267 (1982); Schoonover y. State, 218 Kan. 377, 543 P.2d 881 (1975) (defendant told counsel not to negotiate). 637,

11 15:7 PROFESSIONAL RESPONSIBILITY particularly where the prosecutor has no incentive to negotiate.' Defense counsel also has a duty to fully inform the defendant ofthe consequences of a trial; e.g., a jury could sentence the defendant to death" or a trial could result in too many aggravating circumstances getting before the sentencer. J.,, :: Counsel has a duty to try to negotiate when there are. obvious benefits to be gained by the accused.' These, issues, of course, are, always viewed through the convicted defendant's hindsight.' Obviously, prejudice has to be proved by the accused, and prejudice virtiially always will be hypothetical,' although some circumstances can be envisioned where prejudice can be readily articulated. Recommendation: Some criminal defense attorneys have a policy of never permitting a client to "rollover" on other ' defendants or potential deferidahtsv Defense attorneys who hold this view have a duty to disclose it to the client so the client can make an informed choice of counsel. It may sometimes be possible to work out a plea agreement which would involve the client's testimony, and'failure to do so' could be ineffective assistance.' 15:8 Duty to fully advise the client' "After informing himself or herself fully on the facts and the 'Burger v. Kemp, 483 U.S. 776; ,1C)7 S.Ct. 3114, 97 L., Ed. 2d 638 (1987) (defense counsel not ineffective for not pilea bargaining in capital case where prosecutor had no incentive to bargain for k life sentence anyway), ' "Evans.v. State, 477 S,W.,2d 94 (Mo. 1972).,',\, /r :'''',, 'See Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976) (criticizing the "assembly line" nature of representation afforded the accused where the defendant could have likely obtained a plea agreement in exchange for testimony). ' See also Cole'v. Slayton, 378 F'. Supp. 364 (W.D, Va. 1974) (lawyer was ineffective who did not seek plea of prepare since he concluded accused had no defense).' ' ' ' ' ' '. > Practice Pointer: Merely alleging that defense counsel failed to try to plea bargain will not be enough. To establish prejudice (see 10:8), it will be necessary to show that the prosecutor woul4 have seriously considered a plea to something. See, e.g, Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). Indeed, ifthe client insists '' upon his innocence, there is nothing to bargain for or about.see 15:lD! 'See People v. Turner, App. 3d 847, 323 N.E.2d 371 (3d Dist. 1075). 'See 10:8.' ','., '; ','' 'y. 'Scie, e.g.. Mason v. Balcom, 531 F.2d 717 (5th Cir, 1976), See 15:12.,, [Section 15:i8] ' : ''Arewotaijore; Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R. 4th ETHICAL DUTIES law, defense c candor conceri estimate of the should not in hazards, or pre accused's decis has a duty: to ramifications o: The duty to ; promptly' advif thiere is a vailic ineffective ass: prosecutor." C 'ABA Stds., Tt For cases reji counsel recommen equacy of defense bargaiiiirig, 8 A.L. : 'ABA Stds.; Ti "Isblev, U,S Supii. 495 (W.D. V A,L,R,4th 1 (1978: (counsel apparent] he said were to be For cases for defense cciunsel's ] A.L.R. 4th 'See 9:17. 'McAleney v. I munication of offe: 'ABA Stds., Ti ^RPC Rule 1.4; ' 'u.'s. V. Robei advise of governm of counsel); Elmoi agreement is an i agreement betwee duty to advise his N.C. App, 294, 30! Keith N, Byst Uphoff, Ed., Ethic «RPCRuleL4( necessary to per: representation,"). See 10:26. "See Harris v. 638

12 .L RESPONSIBILITY 3 to negotiate.' 1 the defendant entence the demy aggravating ere are obvious s, of course, are, it's hindsight.' Lsed, and prejufh some circum- ;an be readily torneys have sr" on other torneys wko :nt so the clily sometimes,.rould involve De ineffective e facts and the :, 97 L. Ed. 2d 638 ing in capital case nee anyway). 3riticizing the "ashore the defendant testimbny), '; 1974) (lawyer was led accused had no 3ei failed to try,ce'(see 10:S), have seriously, 483,U.S. 776,. e client insists ut.-see 15;10: 1 (3d Dist. 1,975)..See, 15:12: '', n of criminal' client ETHICAL DUTIES IN PLEA DISCUSSIONS 15:8 law, defense counsel should advise the accused,with complete candor concerning all aspects ofthe case, including a candid estimate ofthe probable outcome."' In addition, "defense counsel should not intentionally understate or overstate the risks, hazards, or prospects of the case to exert undue influence on the accused's decision as to his or her plea."' Defense counsel also has a duty to fully apprise the client of the effect and all the ramifications of the plea." The duty td keep the client informed' includes accurately- and promptly' advising the client of all plea offers' and their effect.' If th^re is a valid tactical reason for not telling the client, it is not ineflfective assistance to not pass on a tentative offer from the prosecutor." Counsel's or the client's misunderstanding of the 'ABA Stds.,The Defense Function, Std (a). For cases rejecting allegations of ineffective assistance because defense counsel recommended acceptance br rejection of a plea offer see Annotation: Adequacy of defen.se counsel's representation of criminal client regarding plea bargaining, 8 A,L,R. 4th & 9, respectively. : 'ABA Stds., The Defense Function, Std. 4-5.i(b). ' ' " "Isblev, U.S., 611 F.2d 173 (6th Cir. 1979); Jennings v. Zahradnick, 455 P, Supp. 495 (W.D. Va, 1978); Com. v. Napper, 254 Pa. Super, 54, 385 A.2d 521, 10 A,L.R;4th 1 (1978); Ex parte Bratchett, 513 S.W.2d 851 (Tex. Crim: App; 1974) (counsel apparently misrepresented what would happen to other charges which he said were to be dismissed; plea held involuntary). For cases for and against this proposition, see Annotation: Adequacy of defense counsel's representation of criminal client regarding plea barg;aining, 8 A.L.R.:4th660 7[c]. 'See 9:17. 'McAleney v. U.S., 539 P.2d 282 (1st Cir. 1976) (attorney's incompetent communication of ofi'er to lesser charge justified setting aside plea),, 'ABA Stds., The Defense Function, Std, 4-6.2(b), f 'RPC Rule 1.4; CPR EC 7-8, 9-2; Cal. RPC ,, ' 'U.S, V. Robertson, 29 P, Supp. 2d 567, 571 (D. Minn. 1998) (failure to advise of government's oifef of cooperation agreement was ineffective assistance of cbuiisel); Elmore v. State, 285 Ark. 42, 684 S.W.2d 263, 264 (1985) ('*a plea agreement is an agreement between the accused and the prosecutor, not'aii agreement between counsel and the prosecutor.... As such, counsel has the duty to advise his client of an offer of a negotiated plea."); State v. Simmons, 65 N.C. App, 294, 309 S.E.2d 493 (1983), Keith N. Bystrom, "Communicating Plea Offers to the Client," in Rodney J. Uphoff', Ed., Ethical Problems Facing the Criminal Defense Lawyer 84 (1995), *RPC Rule 1.4(b) ("A lawyer shall explain a, matter to the extent reasonably necessary to permit the client to make informed decisions regarding: the representation.").,. See 10:26.., ; "See Harris V. State, 437 N.E.2d 44 (Ind. 1982). 639

13 15:8 PROFESSIONAL RESPONSIBILITY ETHICAL DUTIES B possible punishment" or parole eligibility" can vitiate a plea." : Failure to pass on a plea offer that would be accepted by the defendant can be malpractice.''''.,,1,': 15:9 Conflicts of interest in plea bargaining' "Defense counsel should not seek concessions favorable to one client: by any agreement which is detrimental to the legitimate interests of any other client.'" Defense counsel may not ethically advise a client against rejecting a plea offer because of the effect it vy^ould have on a codefendant,' but. there inay be situatipns where,the effept on a codefendant is a, legitimate concern.for jjhe accused;, e.g.^ where there is a spousal, parental, or sibling "relationship with the co-defendant. In those situatipris,'the ^defense counsel and the defendant may properly consider the effect on others, ifthe defendant is fully informed. All this is discussed in the chapter on multiple representation." 15:10 The client who maintains innocence, r,,-i; 'There is a defense lawyer's paradox in ple^ discussions on behalf of the client who maintains his or her innocence. Clients who maintain their innocence should go to trial and should, not be permitted to plead guilty. Sometimes, however, plea offers may be made or obtained which cannot rationally be refused.: ', Observation: Clients who insist on their innocence some-, -' times do, npt,have a good grasp of reality or they cannot admit,to family and friends that they are, in fact, guilty. Thus, defense ; counsel should still engage in plea discussions. Even clients Caution: The situations in which it would not be ineffective assis-..; tance, however, would seldom appear., :,". 1 /, "Cooks V. U.S,, 461 ',2d 530 (5th Cir. 1972) (defense, counsel advised client that punishment.range was six times greater than it was),.»,, ;"Hill V, Lockhart, 474 U.S, 52, 106 S. Ct; 366,^88 L.'Ed. 2d 203 (1985); Poodyv. U.S.,.469 F.2d.705 (8th Cir, 1972)., ',, '..J'See '10:27-^10:28,. ',, ' ' ', ', -'"Krahnv, Kinney,'43 Ohio St; 3d 103, 538 N.E.2d 1058 (1989); Hufferv. Cicero, 107 Ohio App. 3d 65, 667 N,E.2d 1031 (4th Dist. Highland County 1995).' : ', [Section 15:9] ' / 'See Ch 13 (conflicts of interest generally) & Ch 14 (multiple representation (;onflicts specifically), 'ABA Stds., The Defense Function, Std (c). People V. Dell, 60 A.D.2d 18, 400 N.Y.S.2d 236 (4th Dep't 1977). 'Alvarez v. Wainwright, 522 P.2d 100 (5th Cir. 1975). "See Ch who protest plead to som( It is constitut there is afactu actual guilt wh( or. courts, howe asserts his or hi Depending on nal defense ^att possible plea e^ nocehce if a rea There is, howev neg6tia:te a plea Caution: tiously with 1 ful of defens say they are 15:11 Advis infori The U.S. Sen reduced sente practice, even [Section 15:10] - North Carolir (1970); U.S. V. Gas Comment: Manual,,9-27 Compare U.S. where defendant s "^North Carolini Our holding doe valid guilty plea m does not have an, cepted by the com though the States States may bar th( sert their innocenc "refuse to accept a, discretion. 'See, e.g., U.S. (counsel not ineffe to anything). [Section 15:11] isee U.S,S.G. { 'See U.S.S.G. {

14 u. RESPONSIBILITY tiate a plea." accepted by the ^g'.... ;,. avorable to one ) the legitimate ay not ethically use of the effect y be situatipns concern for the or sibliifg rela- )ns, the defens,e er the effect on representation.'* discussions ph locence. Ciiehts and should not ver, plea offers ' be refused; ;, ocence some-,, cannot adrnit Thus, defense ' Even clients leffective assis-:: ' ansel advised client Ed. 2d 203,(1985); i8 (1989); Huff'er-v..Highland County tiple representation l't 1977), ETHICAL' DUTIES IN PLEA DISCUSSIONS 15:11 who protest their innocence often can admit.enough facts to. plead to something they can live with by a nolo or Mford plea. It is constitutionally permissible for a defendant to admit that there is a factual basis for a finding of guilt without admitting actual guilt when there is strong evidence of guilt.' Some states or. courts, however, may prohibit AZ/b/'d pleas when the accused asserts his or her innocence.' :> Depending on the jurisdiction and local practice, then, a criminal defense.^attorney may feel, obligated to seek to, negotiate a possible plea even when the defendant insists on his or her innocence if a real benefit for the client could possibly be obta:ined. There is, however, no ethical or constitutional duty on counsel to negotiate a plea for the client who insists on his or her innocence.' Caution:, Defense counsel must approach the ;client,cautiously with such plea offers. Most clients will bqcome distrust-. ful of defense counsel trjdng to plead them guilty, when they say they are innocent. :,,, 15:11 Advising whether to cooperate or become informants.;--', The U.S. Sentencing Guidelines encourage plea agreements for reduced sentences,' and cooperation against others.' State practice, even without formal guidelines, can work much the [Section 15:10]. 'North Carolina V. Alford, 400 U.S. 25, 91 S.' Ct'. 160, 27 L. Ed. 2d 162 (1970); U.S. V. Gasldns, 485 P.2d 1046 (D.C. Cir. 1973),,, Comment: This is thus known as an "Alford plea." U.S. Attorney's Mariual, , wvsrw.usdoj.gov in 1:12. Compare U.S. v. Biscoe, 518 F.2d 95 (1st Cir. 1975) (not error to reject plea where defendant said he was not guilty and case was not strong). ''^North Carolina V. Alford, AOQV.B; aimn.il: "* ' ' Our holding does not mean that a trial judge must accept every constitutionally ' valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an,absolute right under the-constitution to have his,guilty plea ac- v. cepted by the court, see Lynch v. Overholser, 369 U.S. at 719 (by implication), although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence. Fed. Rule Crim. Proc. 11, which gives a trial judge discretion to ''refuse to accept a plea of guilty....." We need not now. delineate the scope of that ^, discretion.,,.....'see, e.g., U.S. exrel.,'tiiimafi v,'alldredge, 350 F. feupp. 189 (E.D. Pai 1972) (counselnot ineffective where client said he was innocent and would not plead to an3d;hing). [Section 15:11] t 'See, U.S.S.G.,3E1.1 on acceptance of responsibility. 'See U.S.S.G. 5K1.1; Fed. R. Crim, P

15 15:11 PROFESSIONAL RESPONSIBILITY same way.., Lawyers have been found ineffective for not advising the client ofhis or her ability to cooperate to reduce the sentence.' Malpractice actions have been filed against criminal defense lawyers who allegedly refused to seek immunity or cooperate with the government resulting in the client's indictment with later cooperation." 15:12 The Moral Conuiidruni of Representing the Rat' Many defense lawyers are morally and ethically, opposed to representing informers in arranging cooperation agreements which allow clients to avoid responsibility for their own crimes by putting others in prison. Some lawyers who also are committed to defending those accused of crimes do not share this aversion. These views illustrate the wide range of perspectives among defense attorneys who share the comttlon goals of zealously representing clients and preserving integrity in our criminal Observation: Sometimes, the only cooperation is an agreement to testify so the U.S. Attorney can use that agreement to induce codefendaiits to plead guilty.- If the codefendant does not plead, however, the cooperation can require the defendant to become an iriformant agreeing to testify for a reduced sentence.. 'U.S. V. Fernandez, 2000 WL (S.D. N.Y. 2000), opinion adhered to on reconsideration, 2000 WL (S.D. N.Y. 2000) ("The advent ofthe Sentencing Guidelines now makes it mandatory that every defendant be advised at an early stage that cooperation with the Governfnent may be the only course that can substantially reduce the sentence that will ultimately be imposed." (court recognizes no prior cases so hold.) - U.S. V. Duran-Benitez, 110 P. Supp. 2d 133 (E.D. N.Y. 2000) (defendant sentenced as if he cooperated). U.S. V. Robertson, 29 F. Supp. 2d 567, 571 (D. Minn. 1998) (failure to advise of government's offer of cooperation agreement was ineffective assistance of counsel). "Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1996) (Wt no claim where plaintiff did not allege innocence); McGrogan v. Till, 327 N.J. Super. 595, 744 A.2d 255 (App. Div, 2000), afpd as modified, 167 N,J. 414, 771 A.2d 1187 (2001) (same). [Section 15:12] ^This is a reprint of Barry Tarlow, The Moral Conundrum of Representing the Rat, 29 Champion 15 (Aug. 1995), copyright 1995, the National Association of Criminal Defense Lawyers. This article is reprinted with permission of NACDL. The footnote numbering in this section does not match the article because of added notes. Tarlow's views are the lead discussion in Margareth Etienne, The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers, 111. Pub. L & Legal Theory Research Paper Series No (2005), 642 ETHICAL DUTIES justice system. Some lawyei with snitches, obligation to ex ing to partic arrangements, which they saj and not to ma: often represen that the Fedei minimum sent( tions other th defendants will consciences in < Regardless o: sional policies i port a lawyer's ing to become defense lawye: tantamount to in informer act to alternative j compasses the the right to n conscience. A "no snitchbest interests j representation agrees to discui tion, and to inf and (c) the pari yond preliihin deal, the lawy handle the fina Strategically lawyer to be a be perceived bj tactics necessai lawyer at a dig and the lawyer tion with prosei sues surroundh dictate that a s 'U.S. V. Bernal-

16 AL RESPONSIBILITY [vising the client ntence.' criminal defense ity or cooperate indictment with iting the Rat' cally, opposed to :ion agreements dr own crimes by 0 are committed re this aversion. 3pectives among als of zealously in our crirhinal m agreement to nent to induce iocs not plead, t to become an pinion adhered to on Ivent of the Sentencant be advised at an the only course that ' be imposed." (cou!rt.y. 2000) (defendant in. 1998) (failure to ineffective assistance (but no claim where N.J. Super. 595, A.2d 1187 (2001) rum of Representing National Association with permission of ot match the article tienne. The Ethics of Defense Lawyers as per Series No ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 justice system.. Some lawyers have a firm policy against becoming involved with snitches. They believe that they have both the right and obligation to exercise their independent moral judgment by refusing to participate in the "dirty business'" of informer arrangements. Other lawyers claim that this is an elitist position which they say is available only to successful retained counsel, and not to many private practitioners or public defenders who often represent those most in need. These attorneys point out that the Federal Sentencing Guidelines and harsh mandatory minimum sentences leave many defendants with no realistic options other than cooperation. A number fear that classes of defendants will go unrepresented if lawyers are guided by their consciences in deciding whom they will and will not represent. Regardless of their individual personal moral views or professional policies about informers, all defense attorneys should support a lawyer's right to exercise independent judgment by refusing to become involved in, cooperation activities. Recognizing a defense lawyer's, right to refuse to represent snitches is not tantamount to claiming the refusal (or willingness) to participate in informer activities is a morally superior (or inferior) position to alternative philosophical beliefs. Rather, this view inerely encompasses the assertion that lawyers should not be deprived of the right to make decisions based on matters of individual conscience. A "no snitch" policy is consistent with protecting the client's best interests provided that: (a) the client knowingly consents to representation circumscribed by ethical views, (b) the lawyer agrees to discuss and advise the client about any cooperation option, and to inform the client of any offers involving cooperation, and (c) the parties agree that once cooperation has proceeded beyond preliminary discussions, if the client decides to pursue a deal, the lawyer will help the client find another attorney to handle the final negotiations. Strategically it often may be in a client's best interests for the lawyer to be a vigorous and aggressive defender, rather than to be perceived by prosecutors as interested in currying favor. The tactics necessary for the vigorous defense of a client may put the lawyer at a disadvantage if the client later wants to cooperate and the lawyer then needs to develop a friendly negotiating position with prosecutors. Therefore, wholly apart from the moral issues surrounding informer activities, effective strategy alone may dictate that a second lawyer should conduct informer negotiations. 'U.S. V. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). 643

17 15:12 PROFESSIONAL RESPONSIBILITY Defense Lawyers' Right to Exercise Independent Moral Judgment, Refusing to represent active informers on moral grotinds is consistent with a firm commitment to the defense of those accused of crimes, the protection of individual rights' and liberties, and promotion' of the highest traditions of criminal defense advocacy. Leading authorities support the position that a lawyer may refuse'to participate in informer activities under appropriate circumstances. In his treatise, Professional Responsibility ofthe Criminal Lawyer,' prominent ethics authority John Wesley Hall, Jr., recognizes that "some lawyers maintain personal moral values which may preclude them from doing some things which the client or other lawyers may think are dn the client's interest.... Many criminal lawyers absolutely refuse to represent 'snitches' or 'rollovers' as a matter of personal moral code." The position that attorneys should not follow their moral dictates about informer activities undermines ethical lawyering and threatens fundamental principles underlying our judicial system. In an era where lawyers are continuously attacked as "immoral hired guns," it does a great disservice to the bar to suggest that a lawyer's conduct should not be governed by conscience and moral principles." Thus it is vitally important that all lawyers support the right of each individual attorney to exercise moral judgment and autonomy in a responsible and principled manner. Protecting a defense lawyer's refusal to participate in informer activities on moral grounds is essential to the criminal, defense bar and all concerned with the integrity of our judicial system. Informers Pollute our Judicial System Many lawyers refuse to become involved in informer activities because of an unwillingness to become a part of the havoc that informers wreak on our criminal justice system. As the Ninth Circuit Court of Appeals stated in a recent opinion, unfortunately "our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison.'" One pf the most disturbing aspects of a lawyer participating in a cooperation arrangement is prosecution manipulation of 'Section 3.10 at 25 (1987 & Cumm. Supp. 1992). "See Fleming Sales Co., Inc. v. Bailey, 611 P. Supp,. 507, 519, 1 Fed. R. Serv. 3d 1501 (N.D. Ill; 1985) ("when a lawyer accepts or even encourages the role of a 'hired gun' in the worst sense ^the costs to the parties and to the courts are often substantial"). ^Bernal-Obeso, 989 P.2d at 334. ETHICAL DUTIES informer testii the defense lav during the sh linan,, a promi lawyer; The ei exoneration who testified i ous crimes, an Mintz observe [informers] hai with federal a information ag time and moi sweeter.'".. This pheno] prosecution. A evolutionary) ]! an untenable j I subtle or overt j more than tes "memory impr i What ifyou bei i Although th I widespread, th ; an attorney c; \ disturbing acti attorney-client the informer's lawyer compla deal or fall on in this "dirty b of the most pei The refusal tent with' widf they help to ol that "the use ( engaged,in'cla. "By definitic They must be ( cusing the inn under suspicic 'B. Howard M 1995, at 55, 59. ^Bernal-Obeso, ^Bernal-Obeso, 644

18 [AL RESPONSIBILITY ndent Moral loral grounds is mse of those acbts and liberties, riminal defense on that a lawyer nder appropriate ponsibility of the ohn Wesley Hall, personal moral me things which in the client's r refuse to reprelal moral code." low their moral ethical lawyering 7ing our judicial usly attacked as to the bar to sugaed by conscience.t that all lawyers ;o exercise moral dncipled manner, ipate in informer criminal. defense udicial system. aformer activities of the havoc that im. As the Ninth on, unfortunately /here informants and defendants, prison.'" sr participating in manipulation of 1, 519, 1 Fed. R. Sefv. mcourages the role of and to the courts are ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 informer testimony and the troubling position in which this puts the defense lawyer. This treacherous ground was exposed recently during the shameful contrived federal case against Patrick Hallinan,, a prominent and talented San Francisco criminal defense lawyer. The entire case which finally culminated in Hallinan's exoneration was predicated upon the testimony of informers who testified in exchange for leniency regarding their own serious crimes, and the return of drug profits. As journalist Howard Mintz observed recently in The American Lawyer: "These 13 [informers] had spent thousands of hours going over their stories with federal agents, often rendering conflicting accounts. Their information against Hallinan tended to grow more sinister over time and more incriminating as the guilty ^plea deals grew sweeter.'",.,,,.-i ';.!,.j -. This phenomenon certainly is not unique to the.hallinan prosecution. An honorable defense lawyer involved in the (often evolutionary) process of developing informer testimony is put in an untenable position. 'What do you tell a client about, an ageiit's subtle or overt suggestions that testirnony as to X Will,be worth more than testimony as to Y? What do you do as the,client's "niernory improves" and the story changes to get a better! deal? WTiat ifyou become convinced that the client will commit peirjirry? Although the process of manipulating inforrner testimony is widespread, there do not appear to be any reported cases where an attorney came forward and informed the court about this disturbing activity., A snitch's lawyer probably cannot breach the attorney-client privilege and tell the defendant or target.aisout the informer's prior inconsistent statements. If the: informer's lawyer complains to the prosecutor, it will either sabotage the deal or fall on predictably deaf ears. Not wanting to participate in this "dirty business" Of manipulating testimony is peirhapsone ofthe most persuasive rationales for not representing snitches. The refusal to become involved in.informer activities is consistent with widespread mistrust of informers and the convictions they help to obtain. The Ninth Circuit even takes judicial notice that "the use of informants to investigate and prosecute persons engaged in clandestine criminal activity is fraught with peril."'. "By definition, informers are cut from untrustworthy clpth."' They must be carefully watched to "prevent them from falsely accusing the innocent, from manufacturing evidence against those under siispicion of crime, and from lying under oath in ;the 'B. Howard Mintz, "Port Reno's Obsession," The American Lawyer, May 1995, at 5,5, 59,, ''Bernal-Obeso, 989 P.2d at 333. ^Bernal-Obeso, 989 P.2d at

19 15:12 PROFESSIONAL RESPONSIBILITY courtroom.'' Some will "stop at nothing to maneuver themselves into a position where they have something to sell."" Prosecutors are often equally revolted by informers." Indeed, the despicable manner in which many informers conduct themselves demonstrates why many defense lawyers are unwilling to become involved in this tjrpe of activity. The pervasive corruption of the criminal justice system through the use of informers is well documented. Informers undermine our judicial system, and often lead to the tragic imprisonment of the innocent." It is an unfortunate truism that informers are rarely if ever- inotivated by the search for truth and justice which is the cornerstone of our judicial system. Rather, they finger others to get on flush government payrolls and save their own necks by putting Others in jail to serve their tirne. As (now) Ninth Cii-cuit Judge StephfehTrott has observed, these rats are "likely to say and do almost anything to get ;.. out Of trouble... including...lying^'committing perjury, manufacturing evidence, solicitin.g others to corroborate their lies with more lies.... Many are,outrigh.t conscienceless gociopaths to whom 'truth' is a wholly meaningless concept."" ;^SemciZ-06eso, 989 P,2d at 333.' ^"Berndi-Obeso, 989 P.2d at 334; see Dannie M, Martin, "Just Say No to Informer Testimony," New York Times, April 17, 1993, at 15 (DEA informer says "he and other DEA snitches under the tutelage of cynical agents lied, cheated and:did \yhatever was necessary to make the cases and the rewards"). ' 'See Assoc. Attorney General Stephen Trott; Successful Use of Informants as Witnesses for the Prosecution in a Criminal Case (concluding that informants are iiiherently incredible, dishonest, and widely despised and mistrusted), printed in United States Department of Justice, Prosecution of Public Corruption Cases, at (February 1988), : "See, e,g., Bedau & Radelet, Miscarriages Of Justice In Potentially Capital Cases, 40 Stan, L. Rev. 21, (1987).(documenting 117 cases of innocents convicted as a result ofpeijury by prosecution witnesses including capital cases in which informers lied in court to obtain leniency for their crimes); Report of the 1989/90 Lbs Angeles Grand, Jury (June 26, 1990) (investigation finding widespread perjury by informers which was initiated following revelations by Leslie Vernon 'White, a frequent witness for prosecutors who is now in prison for.perjury, which led to reinvestigation of over one hundred felony cases in Los Angeles Courity involving alleged jailhouse confessions); 60.Minutes: The Informers (CBS television broadcast. Mar. 28, 1993) (chronicling "horrifying mistakes in which innocents paid dearly" as a consequence of governmental reliance on false informer information and governmental agents' frequent substitution of a "dubious man's word for good old fashioned police work."). "U.S. Dept. of Justice, Prosecution Of Public Corruption Cases, supra, at ETHICAL DUTIES I: Dramas Cast i Recently,' the tors against Ps testimony wher all charges folic began back in 1 rolling sometim Hallinan. The h gling organizati enforcement eff sentence if com wife and sister, operation. The Mancuso's potei Not sufficieni Mancuso's relat tors turned thei prosecutor Tonj three years re-c linan as a proi charged with 2( for virtually ev Mancuso's operi The baseless prosecutors wit cadre of other recruited. Mane Alfieri. Alfieri ^ who announced in tow as her m under which ME and/or conscri] becoming the pi ers eventually centered on all( ing and paymer ' Assistant Un: sordid mess by representation: Mancuso enterj grand jury invi furtherance ofi legations are i lawyers in the Call Cartel. Pe charge in the in 646

20 T STAL RESPONSIBILITY euver themselves ell."'" Prosecutors id, the despicable emselves demonilling to become ;e system through rmers undermine ; imprisonment of J rarely ^if ever ice which is the y finger others to eir own necks by ow) Ninth Circuit are "likely to say ble... including : evidence, solicites.... Many are ;ruth' is a wholly rtin, "Just Say No to at 15 (DEA Informer if cynical agents lied, 3s and the rewards"), ful Use of Informants luding that informants.sed and mistrusted), tion of Public Cbrrup- In Potentially Capital 117 cases of innocents including capital cases leir crimes); Report of (investigation finding Uowing revelations by who is now in prison red felony cases in Los ns); 60 Minutes: The hronicling "horrifying lence of governmental mtal agents' frequent ned police work."), ption Cases, supra, at ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 Dramas Cast in Hell^Snitches Take Center Stage ' Recently, the four-year-lpng battle waged by federal prosecutors against Patrick Hallinan sank in a cesspoplof inforrner testimony when a jury took just four hours to clear Hallinan of all charges following a six-week trial. The, run-amok prosecution began back in 1989 with the indictment of Ciro Mancuso, a highrolling sometime developer from Lake Tahoe and (then) client of Hallinan. The indictment involved a worldwide marijuana smugr gling organization, and capped almost two decades,pf federal law enforcement efforts to nail Mancuso. Faced with a probable life sentence if convicted, and the prosecutors' threats to indict his wife and sister, Mancuso pled guilty,to running this smuggling operation. The plea agreement, negotiated by Hallinan, set Mancuso's potential sentence at ten years'to life.., ;,, Not sufficiently satisfied by this conviction,y and aware that Mancuso's relationship with his lawyer had deteriorated, prosecutors turned their sights to a new target: Patrick Hallinan. Federal prosecutor Tony 'White, a notorious loose cannon, spent the next three years re-configuring the Mancuso drug.ring to feature Hallinan as a prominent,,co-conspirator. Hallinan eventually- was charged with 20 counts which pinned vicarious liability on him for virtually every, known venture carried out in the ;course of Mancuso's operations.,.,,,0 The baseless case against Patrick Hallinan was crafted by prosecutors with the enthusiastic assistance of Mancuso and a cadre of other informers that he and; his federal handlers recruited. Mancuso was represented by hall-of-shamer Katherine Alfieri. Alfieri was an associate in Patrick Hallinan's law firm who announced one day that she was leaving with Ciro Mancuso in tow as her major client.. She promptly struck a flush new deal under which Mancuso would testify against Hallinan and ensnare and/or conscript some 13 former Mancuso confederates into becoming the prosecutors' bedfellows. At trial this team of informers eventually.'generated a rancid cloud of testimony that centered on allegations of obstruction of justice, money, launder,- ing and payments of large legal fees.,, '! (,. > ' Assistant United States Attorney (AUSA) 'White added to this sordid mess by claiming that much of Patrick Hallinan's legal representation was intended to further the illegal aims of the Mancuso enterprise. The indictment alleged that monitoring: the grand jury investigation and accepting cash fees were acts in furtherance of the broad conspiracy.. Many of these baseless allegations are similar to the charges leveled against Miami lawyers in the recent indictment involving the activities of the Call Cartel. Perhaps White's most bizarre allegation was the charge in the indictment that Patrick Hallinan obstructed justice 647

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