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.