"Representing Informants" by Stuart Kirchick
|Posted on June 10th, 2015 by Admin istrator|
By Stuart Kirchick
Criminal Defense Attorney - Santa Clara County
As a second year law student in 1988, I attended a conference of criminal defense attorneys in San Francisco where half the day was devoted to discovery procedures for the disclosure of informants. In discussing the subject, each prominent attorney proudly announced that they would never represent an informant – as if representing a cooperating defendant were a betrayal of the profession by aiding and abetting the government in doing their job. Why should we help the government that prosecutes our clients, hides evidence from us, and doesn’t know the meaning of truth and justice!?! Not to mention suffer the stigma of being labeled as a “snitch lawyer”.
Over the past ten years, defending a cooperating defendant has undergone a dramatic transformation for criminal defense attorneys. The previously accepted “duck and hide” method, once the decision was made to help the government, is now considered ineffective assistance of counsel (thereby subjecting us to discipline) in light of the Ninth Circuit’s holding in the United States of America v. David Leonti : The cooperation time period between a defendant and the government is a “critical stage” of the criminal process and has become a central part of criminal procedure. In my opinion, the Leonti case as well as the State Bar Act --specifically Business & Professions Code §§ 6068(e) and (h) -- do not permit us to do as we all once did and still desire to do: Hear no evil, speak no evil and see no evil.
Judge Hawkins wrote in his opinion in the Leonti case, “[T]he advent of the sentencing guidelines now makes it mandatory that every defendant be advised in the early stage that cooperation with the government may be the only course that can substantially reduce the sentence that will ultimately be imposed.” In federal cases, every criminal defense lawyer should know the importance of a 5K1.1 letter from the government: “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the [mandatory minimum] guidelines.”
Ethically, we as attorneys are “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” As much as we may dislike representing a confidential informant who decides to turn in the middle of our representation, it is our duty to set aside this personal consideration and continue that representation. In addition to our ethical obligations, one district court has held that it may be ineffective assistance of counsel (again, subjecting us to discipline) if we fail to advise a defendant of the importance of cooperating with the government early in the case. Once cooperation has been agreed upon, failing to help our clients facilitate the process (communicating with federal agents and the prosecutors regarding the appropriate course to maximize our client’s chances for providing substantial assistance to the government) may also be incompetence.
In holding that the Sixth Amendment guarantee of competent counsel applies here, the court found this to be a critical stage of the proceeding for those charged with federal crimes, thereby placing an obligation on criminal defense attorneys that they might rather not accept.
Further, informants have always been, and continue to be, fairly well protected against their actions being disclosed to counsel representing the informant’s target. In U.S. v. Abonce-Barrera, 257 F. 3d. 959 (9th Cir. 2001), the court held that the defense is only entitled to information about other cases the informant worked on if it can prove that the information is “material”. Following its prior holding in United States v. Flores, 540 F. 2d 432 (9th Cir. 1976), the Abonce-Barrera court reiterated that a request “to disclose the names and numbers of the prior cases in which the informant … had testified on behalf of the government” was not material based only on a “hunch” that the informant may have tampered with evidence in other cases.
Thus, as much as we may be embarrassed by, or have a distaste for continuing to represent a client who has turned informant, counsel is at great risk of being found incompetent by not continuing to hand-hold their clients through the cooperation process. And while they might be risking their personal safety when in custody or once released, cooperating defendants can take solace in knowing that their efforts of cooperation are to be zealously protected by their attorney and in most cases from disclosure by the courts.
Stuart Kirchick has practiced criminal defense in Santa Clara County for nearly 15 years. For questions, please call 408-291-0123
4 5K1.1 of the Sentencing Guidelines
5 B&P § 6068(h).
 U.S.A. v. Fernandez, 2000 WL 534449(S.D.N.Y.)
 See U.S.A. v. Flores, 540 F. 2d. 432, 437-438. (9th Cir. 1976)
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