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Before spilling the beans to the cops, read and negotiate the fine print

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"No" is an essential response by a police suspect who has no lawyer present. On the other hand, once they have lawyers, a slew of federal criminal suspects line up with their lawyers at prosecutors’ doors right away in the hopes of getting more favorable plea deals for divulging criminal activities by them and others, and often by providing ongoing assistance to prosecutors and law enforcement by going undercover to encourage and catch others in criminal activity, by providing further information on others’ criminal activity, and by testifying against other criminal defendants. The initial such discussion by a suspect with police and prosecutors is called a proffer session, whereby as much immunity as possible for the suspect should be sought in writing to minimize being prosecuted for any information s/he divulges.

I advise potential clients to find other counsel if they wish to snitch. By avoiding snitch work, I avoid feeling like a temporarily deputized prosecutor or police officer. I have lost numerous potential clients by telling them to hire other lawyers if they wish to snitch, but perhaps have been hired by numerous others — at least those who are not likely to need to consider snitching — who agree with my approach.

Criminal defense lawyers need to negotiate and review written proffer agreements like eaglehawks, before their clients utter even one word to police and prosecutors. Unfortunately, Gary Lee Gillion learned the hard way how unfavorable proffer agreement language can come back to haunt a suspect. U.S. v Gillion, ___ F.3d ___ (4th Cir., Dec. 28, 2012). 

Gillion entered into a written proffer agreement with the federal prosecutor’s office, whereby the agreement included a provision that gave prosecutors the option of requiring him to answer questions by polygraph. The prosecutor’s office ultimately opted to polygraph Gillion — being investigated for fraud involving sales of commercial vehicles — but he walked out in the middle of the polygraph session. Gillion ultimately proceeded to trial, and was convicted.

At trial — over Gillion’s lawyer’s objection — the prosecutor introduced Gillion’s statements from his proffer session into evidence. Federal proffer agreements ordinarily assure that the suspect’s words at a proffer session will not be used against him or her at trial except to cross-examine the suspect if s/he testifies at trial counter to his or her words at the proffer session. Here, though, Gillion’s proffer agreement withdrew such protections if he did not cooperate with polygraphing pursuant to his proffer agreement.

The Fourth Circuit had no problem agreeing with the trial court that Gillion’s walking out of the polygraph session breached his proffer agreement and allowed the prosecution to introduce at trial his words from his proffer session. The Fourth Circuit rejected Gillion’s argument that Gillion’s going to trial somehow extinguished punishing Gillion for his breach of the proffer agreement.

Could Gillion’s lawyer have negotiated the polygraph requirement out of his proffer agreement? How will we ever know?