John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
Comments on Criminal Issues
November 22, 2007
THE DUTY TO REPRESENT
Houston Criminal Defense Attorney John Floyd Discusses the Ethical Dilemma of Representing the Cooperating Witness
True criminal defense lawyers relish the opportunity to fight a case before a jury; to force the government to trial whether they like it or not. Criminal defense lawyers believe that often it is only in trial, before a jury of our peers, that true justice can come forth. And we also know that many times a jury trial is necessary to achieve any victory for the client, whether that is by achieving a lesser sentence than offered by the government or by total acquittal and vindication.
However, there are many times, for obvious reasons, when a trial is not in the best interest of the client. It is then that the client, with open and honest advice from his lawyer, must decide whether to risk a trial or begin the process of entering a plea agreement. It is also then that the client must decide whether to attempt to reduce or eliminate the possibility of incarceration by cooperating with the government.
Some dedicated criminal defense attorneys, including some who I truly respect, will not represent a “cooperating witness.”
While a criminal defense lawyer’s personal disdain and contempt for the judicial system that has spawned the growing use of cooperating witnesses is understandable, the attorney’s duty of zealous and dedicated representation often requires representation of the “snitch.”
Undoubtedly, an attorney can ethically refuse to represent a person who is, or wishes to become, a cooperating witness for the government. But once an attorney accepts a client through a paid fee or has a client imposed on him through court appointment, he has an ethical duty to zealously represent that client even if it means securing a “deal” for the client as a “cooperating witness.”
A criminal defense attorney often does not enjoy the professional luxury of having a moral barometer to measure what kind of clients he/she will represent. Killers, pedophiles, serial rapists, child molesting priests, and corrupt cops/educators/politicians are all considered sordid, wretched, despicable human beings by the general public. But they have one thing in common: a guaranteed Sixth Amendment right to the effective representation of counsel even if that means securing a “deal” for the client as a “cooperating witness.” While our immediate dedication is indeed to the client, our greater loyalty is to the Constitution and the Rule of Law. It is for these higher principles for which we must fight, demanding justice for every “accused” no matter how vile the accusation. Criminal defense lawyers do this everyday. We stand between the overwhelming power of the government and the accused and protect the individual by demanding the courts observe the law and fairly administer its protections.
U.S. Justice Department statistics reveal that roughly 90 percent of all criminal defendants plead guilty – most involving a “plea bargain” of some sort. The criminal justice system encourages defendants to “snitch” or become “cooperating witnesses” against others. Judges believe this is the first step in accepting responsibility for one’s criminal actions. Defense attorneys, therefore, have a fundamental duty to explore the possibility of a plea bargain – even if it means discussing the possibility of implicating others in order to secure the most favorable “deal.” The ultimate decision to cooperate rests with the defendant, but the duty to advise the client of the potential benefit of cooperation rests with the attorney. This advice should be given along with counsel about all other possible courses of action, including the possibility of ultimate relief through trial by jury.
If attorneys allow themselves the professional luxury to say they will not represent a cooperating witness, what about those charged with the most unpopular and vile crimes like child sexual abuse, treason or terrorism? Who will represent them? It certainly cannot be reasoned by any rational standard that a cooperating witness is any more morally reprehensible than those who have committed such offenses.
Obviously, an attorney really does not have a choice to an existing client. All possible alternatives must be discussed, analyzed and counseled. The United States Supreme Court has imposed upon attorneys a fundamental duty to effectively represent their clients throughout the criminal proceedings, including sentencing. See: Strickland v. Washington, 466 U.S. 668, 687 (1984). See also: Maganana v. Hofbauer, 263 F.3d 542, 561 (2001)[counsel’s failure to correctly advise defendant about sentencing exposure was prejudicial because had defendant known his exposure, he would have agreed to spend ten years in prison rather than risk the 20-year ultimately imposed by jury].
If a client decides to enter a plea agreement, an attorney has an ethical duty to advise the client about the pros and cons of accepting full responsibility for his criminal actions, even if that means implicating others and providing assistance to law enforcement. The U.S. Sentencing Guidelines, § 3E1.1, offers a possible “offense level” reduction if the defendant accepts personal responsibility for the offense. This reduction does not apply if a defendant tries to shield a co-defendant from criminal liability and misleads law enforcement officials. See: United States v. Kiulin, 360 F.3d 456, 460 n. 1 (4th Cir. 2004).
A criminal defendant who decides to cooperate with law enforcement, to the detriment of either himself or others, enhances his prospects of offense level reduction. See: United States v. Banks, 252 F.3d 801-807-808 (6th Cir. 2001); United States v. Water, 372 F.3d 1141, 1146 (9th Cir. 2004). A criminal defendant’s attorney must advise the client that the acceptance of personal responsibility and cooperation with law enforcement cannot be delayed; it must be prompt, complete, and honest with the defendant bearing the burden of affirmatively demonstrating acceptance of responsibility. See: United States v. Franky-Ortiz, 230 F.3d 405, 408-09 (1st Cir. 2000).
The government may also move for an additional one-level reduction based on the defendant’s cooperation. See: Sentencing Guidelines, § 3E1.1 (b).
Additionally, and usually most significantly, the government can move that the court depart downward on a recommended sentence because of substantial assistance the defendant has provided to law enforcement. Id., § 5K1.1. See also: Wade v. United States, 504 U.S. 181, 185 (1992); United States v. Hashimoto, 193 F.3d 840, 841 (5th Cir. 1991). It is this guideline which has encouraged so many defendants to cooperate, but with the draconian U.S. Sentencing Guidelines, it is often the only way a defendant gets relief in relation to his real role in the offense and other mitigating factors that are often not adequately represented in Guideline calculations.
An attorney representing a client who, at any point prior up to or during trial, decides he wants to cooperate must advise the client to tell the complete truth, even if that truth assists the prosecution against others being tried jointly or awaiting trial separately. The attorney at this point in the criminal proceedings should not withdraw from the case, nor should the court allow withdrawal if such acts to the detriment of the defendant.
CONCLUSION
The criminal trial process today, with an abundance of ineffective assistance of counsel jurisprudence and a litany of federal and state sentencing guidelines that both demand and encourage a defendant’s acceptance of personal responsibility and cooperation with law enforcement, does not offer an attorney a lot of “wiggle room” when it comes to his/her personal morality or sense of ethics about who to represent. It is our job to represent the accused and demand that all the protections of the Constitution and laws of this land are given to our clients.
The criminal trial process is adversarial for one fundamental reason: to determine the truth through vigorous examination. If the truth tends to implicate the client, then the criminal defense attorney must work toward mitigating the prosecution’s evidence of guilt – by trying to establish the prosecution cannot or did not prove its case beyond a reasonable doubt; that the prosecution did not present sufficient evidence to warrant a conviction on the offense charged; that the evidence warrants conviction on a lesser offense; or that the defendant is simply not guilty. However, when our client’s are found guilty, or wish to plea guilty, it is often in their best interest to accept personal responsibility and consider cooperation with law enforcement to seek a reduced sentence. After all, the lawyers and judges go home after a case is adjudicated. It is the defendant who faces the prospect of prison time and it is he alone that should be allowed to decide whether to attempt to reduce that time of incarceration by cooperation.
An attorney who takes cooperation with law enforcement off the defense table under threat of withdrawal from the case injures a criminal defendant’s Sixth Amendment guarantee to effective assistance of counsel. An attorney’s personal disdain for “snitches,” just like a personal dislike for other vile criminal offenders, should not factor into the duty to provide effective representation.
The federal system of criminal justice, with the heavy reliance upon the Sentencing Guidelines and their emphasis on cooperation, is in bad need of repair. But, refusing to completely represent clients in federal court, including a full discussion of all their options for relief, is not the best way to fight this injustice. We should change the laws governing the system which encourage over reliance on snitches. Until then, criminal defense lawyers must continue to fight in the trenches and to use whatever tools they have at their disposal to achieve the best possible result for the client.
[ Back to top ]
