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Editors Note: This is part one of two parts. Part two will run tomorrow. The current federal grand jury investigation regarding employees and officials of the Pennsylvania State Senate, In re Grand Jury Investigation, has raised numerous issues in which the role of the defense attorneys has been called into question. In a district court decision with possible far reaching ramifications, a respected Philadelphia criminal defense law firm was disqualified from representing several witnesses in a grand investigation. Two aspects of that decision are the subject of this column, appearing here in two parts. I make the following observations while acknowledging a great respect for the district court judge who is the author of the decision in that case. The purpose of this column is not to examine the ultimate conclusion of whether the law firm had a potential or actual conflict of interest and if the clients were capable of making an informed waiver of the conflict. Those are complex questions requiring a detailed factual and legal discussion that is beyond the scope of this article. The purpose of this article is to examine two criteria applied by the court as an indication that there was a conflict of interest on the part of the law firm representing two targets of the grand jury. These two criteria are: failure to advise the clients to negotiate with the United States for immunity, i.e., make a proffer to the U.S. Attorney; and the fact the law firm’s fees for the representation of the two targets of the grand jury were being paid by the employer of two targets, from a fund which is ostensibly controlled by the ultimate target. I submit that neither of these criteria should carry any weight in a determination of whether an attorney has a conflict of interest in representing witnesses in a grand jury investigation. Carried to their ultimate conclusion, application of these factors will seriously affect the proper functioning of the adversarial system in grand jury investigations. At the outset there are several terms and concepts that should be explained. Immunity. As discussed in this article immunity means formal immunity granted by court order pursuant to 18 U.S.C. Section 6001-6005. Once a witness is granted immunity any testimony given by that witness, and evidence obtained from leads from that testimony, may not be used to prosecute the witness for any crime, except for perjury in testifying under the grant of immunity. Proffer. This is a procedure instituted by the U.S. Attorney as a method to determine if a witness is a likely candidate for a grant of immunity. The proffer procedure was devised because prosecutors dislike granting immunity cold; i.e., without some idea of what the witness may say upon being immunized. In the proffer process, the witness is examined by government attorneys in an interview to determine the essence of his or her probable testimony, and whether the witness is credible. In the event that the government elects not to grant immunity, any statements given in this proffer session may not be used against the witness in any future prosecution with some very definite exceptions. These exceptions will be explained below. One major drawback of these proffer sessions is that any leads the prosecutor learns from this interview may be used to obtain other evidence against the witness which can be used in a prosecution of the witness. Thus, if in the interview, the witness gives information that uncovers other witnesses or other evidence against the proffering witness, that newly obtained evidence can be used against the witness. Subject or Target. These are terms used by the prosecutor to describe the witness’ involvement in the matter under investigation. A subject is a person who has relevant information about the matter under investigation. A target is someone for whom the prosecutor feels there is probable cause to bring criminal charges, i.e., a putative defendant, according to the U.S. Attorney’s Manual, Chap. 9-11.250. In addition, there are several legal tenets that are applicable to grand jury matters. Representation of grand jury witnesses and representation of defendants in a criminal trial are two very different situations, and the cases cited for one situation usually do not apply to the other. Compare the 3rd U.S. Circuit Court of Appeal’s United States v. Dolan and In re Grand Jury Empanelled. The Anglo-Saxon legal system followed in this country in the criminal law is one of accusation, and the government must prove that a defendant committed a crime. There is no burden on the defendant to come forward and prove his innocence. In our system, the government is not entitled as a matter of right to a cooperating witness. Counsel advising several witnesses to “stonewall,” i.e., refusing to cooperate with the government by asserting the Fifth Amendment does nothing improper. As a tactic, according to Cuyler v. Sullivan, ” . . . a common defense gives strength against a common attack.” The reader should be aware that once, during my career as the U.S. Attorney, I proposed to the 3rd Circuit conference that in grand jury investigations there should be one attorney for one witness. I published a law review article in the Dickinson Law Review on the same subject. My proposal was met with intense opposition by the attendees at the 3rd Circuit conference. The law review article has never been adopted by any court nor was it ever discussed in any opinion. I take that response as stare decisis that a mandatory requirement of one-lawyer-one-client for grand jury investigations is not a proposition that will be enforced by any court. In grand jury investigation, one law firm represented seven witnesses who were subpoenaed before the grand jury. All but one were employees of the Pennsylvania Senate. Five of the witnesses were designated as subjects or nontargets by the prosecutors. The law firm advised those five to engage in proffer sessions with the U.S. Attorney and they testified before the grand jury. The remaining two witnesses were designated as potential targets by the U.S. Attorney and the law firm declined to permit them to engage in proffer sessions. The U.S. Attorney informed the court that he wanted to immunize only one of the two, but that could not do so unless he received a proffer. (This is a tactic often used by prosecutors and will be discussed below). The U.S. Attorney further argued that each of these two witnesses could incriminate the other. He argued that because the law firm represented both witnesses, it had a conflict of interest and could not ethically advise one or the other to engage in a proffer, as one could incriminate the other. The law firm informed the court that if the government filed a motion to immunize one of the two targets, the law firm could no longer represent that person, and would advise the immunized witness to engage other counsel. The law firm further stated that if, as the result of the immunized testimony of one target, the other target was indicted, the firm could not represent that person at trial under United States v. Dolan, supra. The court disqualified the law firm from further representing the two targets and also from further representing the other five witnesses. The court based its ruling as to the targets in large part on the law firm’s refusal to negotiate immunity with the government. As a practical matter, this means producing either one for a proffer session with the government. The court viewed such a process as completely a favorable step for either witness. A refusal by an attorney to advise a client to engage in a proffer session should not be deemed a factor in determining whether an attorney has a conflict of interest. Simply stated, a proffer session is not a trip to Hollywood and certainly is not a guaranteed safe passage to immunity. There are numerous downsides to agreeing to a proffer session. An invitation to proffer is not a guarantee of immunity. As a result of the proffer session, the prosecutor will know the witness’s involvement and worse, his or her likely defenses; the cat is out of the bag. The prosecutor, after hearing the witness’s story, may decline to offer immunity, as is his right, for numerous reasons. He may feel the witness is too involved in the illegal activity to be given complete immunity and must enter a plea of guilty to some charge. This often occurs, and the witness is worse off because the prosecutor knows the gravity of his conduct and the possible defenses. A serious problem is that the prosecutor may not believe the witness. The prosecutor may have other witnesses, already cooperating, that have given a different version of the facts, and he may choose to believe them. Even though these other witnesses may be giving an incorrect version of the facts and may be pursuing their own agenda, the one giving the proffer has played all his cards, has given the prosecutor unique facts about his situation, and has given the prosecutor a road map to his conviction. There are other serious ramifications to a proffer. If the witness is indicted and takes the stand on his own behalf and his testimony differs from that given in his proffer, there are drastic ramifications. Pursuant to the proffer agreement, the prosecutor is free to offer the proffer statement at trial as a prior inconsistent statement. This is devastating evidence. Moreover, the same situation may result, even if the witness does not testify at trial but offers witnesses or other evidence, contra to his proffer statement, or his attorney cross-examines witnesses, or produces evidence contra to his proffer statement. Robert E. Welsh Jr., a former Assistant U.S. Attorney, and an experienced defense attorney, said that even the slightest attempt to offer any evidence that mildly contradicts the proffer statement, will permit the U.S. Attorney to offer the proffer statement in evidence. According to Welsh, “If you tell the jury in your opening statement my client is not guilty or even offer character evidence you may trigger the provision which permits the government to offer the proffer statement.” If convicted, the prosecutor will most likely attempt to enhance the severity of the sentence by demonstrating that the witness lied to the prosecutor in the proffer session. This could add as much as one year’s imprisonment under the federal sentencing guidelines calculations. Creed Black Jr., a Philadelphia defense attorney and former federal prosecutor, states that proffer letters are viewed with growing disfavor among the defense bar. Although proffer letters were once presumed to involve an acceptable level of risk, Black says that has changed. “United States Attorneys around the country have ratcheted up the stakes by toughening standard proffer language to impose stricter penalties if the proffering witness is indicted and goes to trial. Experienced criminal defense lawyers are now more wary of the proffer process,” according to Black. “It’s definitely not for every client.” To be continued on page 7 of tomorrow’s Legal. PETER F. VAIRA is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He may be contacted concerning issues of eastern district practice at [email protected]

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