When I’m representing a white-collar criminal defendant pre-indictment, one of my key tasks is to try to contact potential witnesses.
But when? The timing is a tightrope.
Contact a witness before you know anything about the case and your risk not asking the right questions in what may be your one shot to talk. Contact a witness too late and you risk losing the chance to ask any questions at all.
Why would you lose your chance? Because if a government agent gets in touch with the witness first, there’s a very good chance that the witness won’t talk to you at all. It’s maddening and frustrating. It happens much too often to be a coincidence.
It seems that some government agents feel the need to subtly—or not to subtly—discourage witnesses from talking to defense counsel. Now, I’m not talking about drug or violent cases where there’s a true risk of physical retribution against witnesses. Let’s just say that “snitches get stitches” doesn’t apply in my cases.
Every prosecutor will deny that he discourages witnesses from talking to defense counsel. Every agent will deny that it too. And you probably can’t prove that it happened.
How It Works
Here’s a common scenario:
A colleague of my client—let’s call her Ms. Smith—tells my client she’d be happy to talk with his lawyer to give her side of what happened. Great. But then, a government agent contacts Ms. Smith. When I contact Ms. Smith, I get crickets. No return phone call, no return email, nothing.
Sometimes I will hear second- or third-hand that Ms. Smith was told she “didn’t have to”talk with defense counsel or was told to keep her discussion with the agent a secret or that it would be best if Ms. Smith didn’t talk to “anyone” about what they discussed.
Every once in a while, I will hear a witness explain that he was told not to talk to defense counsel. (That’s very rare, but it happens.)
I’ve had prosecutors tell me that they are cautious with witnesses because they worry about a defendant tampering with a witness and influencing his testimony. Well, I worry about that too. The last thing I need is an obstruction or tampering charge tacked onto my client’s indictment.
But I also worry that the government agent will tamper with a witness or influence his testimony. That point never seems to sink in, because of course, the prosecutor or an agent would never try to influence a witness’s testimony. (I can hear the resounding chorus of agreement from my fellow defense counsel.)
Is this ok? And, more important, can defense counsel do anything about it?
The Ethics Rules
The ethics rules make clear that an agent (or a prosecutor) cannot tell a witness not to talk to defense counsel.
In D.C., Rule 3.4(a) says that lawyer shall not “[o]bstruct another party’s access to evidence or . . . or counsel or assist another person to do so.”
Rule 3.4(f) says that a lawyer shall not:
Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) The person is a relative or an employee or other agent of a client; and
(2) The lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.
Under these rules, it seems clear that a prosecutor (or an agent acting under the prosecutor’s supervision) cannot instruct or request that a witness not talk to the defense.
A defendant also has the right to defend against criminal charges under the Fifth and Sixth Amendments. Part of that right includes the ability to contact witnesses.
In a long-ago case, Gregory v. United States, 369 F.2d 185, 188–89 (D.C. Cir. 1966), the D.C. Circuit addressed the situation where the prosecution had told witnesses not to talk to the defense unless the prosecution was present as well:
Witnesses, particularly eye witnesses, to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. Here the defendant was denied that opportunity which, not only the statute, but elemental fairness and due process required that he have. It is true that the prosecutor stated he did not instruct the witnesses not to talk to defense counsel. He did admit that he advised the witnesses not to talk to anyone unless he, the prosecutor, were present.
We accept the prosecutor’s statement as to his advice to the witnesses as true. But we know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and what they will testify to . . .
We do not, of course, impugn the motives of the prosecutor in giving his advice to the witnesses. Tampering with witnesses and subornation of perjury are real dangers, especially in a capital case. But there are ways to avert this danger without denying defense counsel access to eye witnesses to the events in suit unless the prosecutor is present to monitor the interview. We cannot indulge the assumption that this tactic on the part of the prosecution is necessary. Defense counsel are officers of the court. And defense counsel are not exempted from prosecution under the statutes denouncing the crimes of obstruction of justice and subornation of perjury . . .
The court went on to explain that justice is served when both sides have the chance to interview witnesses:
A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace. It is not suggested here that there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense could not know what the eye witnesses to the events in suit were to testify to or how firm they were in their testimony unless defense counsel was provided a fair opportunity for interview. In our judgment the prosecutor’s advice to these eye witnesses frustrated that effort and denied appellant a fair trial.
The Gregory case had a fairly extreme instruction by the prosecutor and that’s about what it takes to win a case like that.
The James Holmes Case
I found an interesting motion for sanctions as I was researching this blog post. Turns out it was from a well-know crime.
This is the James Holmes capital case—the individual who was convicted of the mass shooting in an Aurora, Colorado movie theater.
In that case. the defense hired a “victims advocate” to help reach out to the victims to see if they would help the defense. There was some confusion among those contacted about the exact role of the advocate.
In response, the government emailed the victims and subtly discouraged them from talking to the defendant’s victims advocate.
The email read in part:
PLEASE-before you agree to talk with someone about this case please find out who they REALLY are and decide whether you want to talk with them. PLEASE feel free to call me and ask me before you agree to talk with someone-please ask me if 1 know who they are and then you can make an informed decision about whether the person is anyone who you want to speak with. Think about it-anyone who is trying to speak to you for a legitimate purpose to HELP YOU … will be happy for you to call them back in 5 minutes while you check and find out who they really are-if they act strangely about your request to verify their information, probably that is red flag that you should be concerned about. For instance, as you know, you can call me 24 hours a day-I’m happy to help and I would be happy to call you back if you wanted to verify who I really was. Also, if you have been contacted by any of these individuals, it would be really helpful if you would let me know that you talked to them. They do not have any obligation to tell me that they talked to you about-so if I don’t know that you talked to them, I can’t help you with concerns that you may have, and I can’t be fully prepared for trial.
It also said:
Please know that you can speak with anyone you wish about this case. You can speak to the Defense, to the Prosecution, or anyone you wish. However, the right to speak or not speak to anyone about this case is completely your choice alone to make. Please also know that you can set whatever parameters you would like for any potential conversations or interviews you choose to have in the future. The best way to ensure an accurate account of a conversation is to record the conversation (with the knowledge and consent of persons involved). You can have any potential conversations or interviews alone, you can ask to record the conversation, you can ask to have a law enforcement officer present during the conversation, you can ask to have a friend present, or you can ask to have someone from the District Attorney’s Office present, or you can ask to have anyone you want present. You are also welcome to contact anyone you wish, or me, if you ever have any questions about speaking to anyone about this case.
The defense didn’t back down and filed a pointed motion for sanctions for the interference with the preparation of their defense.
It will shock no one that the defense lost.
The court concluded that the government’s email did not interfere with the preparation of the defense or prevent the defense from talking to victims. It explained that the prosecutor acted in good faith in sending the email, because she genuinely believed that the victims advocate was not acting properly. The court rejected the argument that it was an ethical violation.
The court also disagreed that the email was intended to interfere with the defense. First, victims were properly encouraged to voice their concerns through the District Attorney’s office. Second, at least one victim did speak to the victim’s advocate, so the email did not discourage anyone. (This is a stretch. How many other victims were entirely dissuaded from talking to the defense?)
But, the court did throw the defense a bone:
Nevertheless, the Court sympathizes with the defendant’s criticism because, as a result of imprecise draftsmanship, the statement could be misinterpreted. A victim may misunderstand the prosecutor as incorrectly implying that, while he is free to speak to [the victim advocate] and anyone else affiliated with the defense, there is “no need” to do so “because the district attorney’s office can serve and fulfill all of [the victims’] needs”
However, the parties are not competing businesses attempting to sway consumers to choose a product or service. This is a criminal case, and a prosecutor has a bounden duty to seek justice even when she may be convinced that the defense has implemented an imposturous strategy involving underhanded tactics. While the Court understands why both parties are vying for the victims’ support and cooperation, the prosecution must be circumspect to avoid creating the impression that victims need not talk to the defense because, regardless of what they may think, believe, or want, the prosecution will take care of them just as well as, if not better than, the defense.
The court ultimately ordered the government to send a “clarifying” email, though it didn’t specify what needed to be in it.
What Can Defense Counsel Do?
Identifying a problem is half the battle. The other half is figuring out to fix it.
You can tell from the Holmes case how hard it would be to win a motion for sanctions for interference with the defense. And the government knows it.
I’ll be honest, I don’t think this problem is entirely fixable from the defense perspective.
First, for the most part, prosecutors and agents know the legal limits, and they know exactly how far they can go. Simply telling a defense witness that they don’t have to talk to defense counsel usually is enough to convince a witness not to talk to defense counsel. While even that subtle discouragement violates the spirit of a fair system in my view, it likely doesn’t violate the law.
Second, an FBI agent has the ability to convince a witness to talk simply by flashing a badge. No matter how often we see on TV that witnesses do not need to talk to the agent, everyone thinks he “has nothing to hide” and figures it is easier to talk than to resist. (#RESIST)
But witnesses feel no such natural compunction to talk to a defense lawyer or an investigator helping the defense.
Here’s what we can do.
We can ask questions of the witnesses who do talk to us and find out what exactly the government agent said to them.
For the witnesses who will not talk to us, we can ask those questions when they are on the stand at trial. It is never too late. A mid-trial motion for sanctions is a possible solution.
When it is warranted, we can file a motion for sanctions with the court and tell the court exactly what is happening, and seek relief from the court.
We can keep speaking out about this problem. Good prosecutors who have strong cases don’t engage in this type of garbage. They know they can win without toeing the proverbial ethical line. But we need to make sure the small minority of prosecutors who don’t have this mindset are exposed and called to task.