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Teamwork among co-defendants’ lawyers

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When dealing with co-defendants’ lawyers, I have had experiences running from the very positive to the very negative. The very positive side includes a lengthy four-defendant federal felony trial where all lawyers whose clients did not plead guilty at all times worked together well and got along personally, and never did anything to undermine the others’ case.

A more negative experience involved a co-defendant’s lawyer in a drug felony trial who told me he did not care about the outcome of his client’s case because the court would not let him out of the case despite his client’s stiffing him on his fee. He anticipated this would be antithetical to my values, but told me his view, nonetheless. Whether or not this attitude affected his performance, the lawyer proceeded to ask the police numerous open-ended, non-controlled cross examination questions that risked eliciting — but fortunately did not elicit — damaging answers for my client.

Then, there are the co-defendants’ lawyers who will not return a phone call once their client has signed a snitch agreement with federal prosecutors. (I criticize the snitch system here). Even a criminal defense colleague with a particularly big heart once told me that there still might come a time when he’s not returning my calls if he represents a co-defendant who decides to snitch against my client.  

Such lawyers have nothing to lose for their clients by just returning the phone call and apologizing for not being able to discuss the case further. What happens if the co-defendant’s plea deal falls through, and the co-defendant’s lawyer then needs the remaining co-defendants’ lawyers’ input on strategizing the case? How will that lawyer feel if the response is silence, or a delayed response? My response might be to tell the lawyer that s/he’s lucky that I don’t believe in penalizing the defendant for the lawyer’s previous non-responsiveness.

Worse than the unreturned phone call, though, is finding out that the co-defendants’ lawyers are ganging up on one’s client. Just because a colleague is a criminal defense lawyer does not mean s/he will ever put his or her interests in collegiality ahead of what s/he perceives to be the client’s interests.

What if the non-responding co-defendant’s lawyer is in a community where s/he inevitably will be on future cases with the lawyers whose calls s/he does not return? Refusing to return a co-defendant lawyer’s call — on the basis that one’s client will snitch — is myopic, of no benefit, and not collegial.

In his December 17 blog entry, Little Rock lawyer John Wesley Hall details the collegiality among criminal defense lawyers in Arkansas. He talks of a co-defendant’s lawyer who called to wish John luck on the remainder of the trial — after the co-defendant entered a guilty plea mid-trial, and did not testify against John’s client. Such small words can go a long way for the remaining defense lawyer, particularly from a colleague who shared the experience fighting the case.

Also of note is the willingness of John — who has shown me kindness and collegiality before — to say that his client was found guilty. The point is not to give up as a criminal defense lawyer after a guilty verdict, but to fight as skillfully as possible for every client for an acquittal on as many counts as possible, next to fight for the most favorable sentence, and to learn from both the victories and defeats to become a better lawyer. When the criminal defense lawyer fights skillfully and effectively at trial, if the client is found guilty, at least the client knows s/he did not go down without a fight. When a defendant pleads guilty, often in the back of the mind is the question whether the outcome would have been more favorable had the defendant gone to trial.

Jon Katz.