Wrath of vengeance
Prosecutors take aim at defense attorneys
December 8, 1998
San Francisco lawyer Patrick Hallinan negotiated a sweet deal for Ciro Mancuso in 1990.
Mancuso was facing a life sentence on 49 felonies related to his massive Reno, Nev., drug trafficking operation.
For Mancusos "full and complete cooperation and truthful testimony" in helping to convict others in the drug operation, the government agreed to seek only 10 years in prison. Further, he would be allowed to keep $600,000 he had in a Swiss bank account and various properties worth more than $4 million. The best news: prosecutors promised not to indict any other members of Mancusos family.
Hallinan had played hardball in rancorous negotiating sessions with Assistant U.S. Attorney Anthony White and was elated with the results.
That soon changed. Within months, Hallinan would learn his client had secretly sought out prosecutors and struck another deal.
Mancuso had agreed to link Hallinan to the drug conspiracy. In exchange, court records show, prosecutors promised to give one of Nevadas most notorious drug traffickers probation and no jail time.
In the crosshairs
When Congress enacted a series of get-tough-on-crime laws in the 1980s, no one realized defense attorneys would become such easy targets.
The same laws that have made it easier for prosecutors to prove money laundering and racketeering and other conspiracy charges made it especially easy to argue that defense attorneys had illegally conspired with their clients.
"When defense lawyers are aggressive, or innovative in terms of the kinds of issues that are raised, prosecutors have this tendency to assume the criminal defense lawyer is a member of a conspiracy," said William Aronwald, a former federal and New York state prosecutor who once supervised the Federal Organized Crime Strike Force in the Southern District of New York.
Aronwald is now a criminal defense lawyer in White Plains, N.Y.
"One of the problems is that prosecutors have this notion that it is impossible for criminal defense lawyers to successfully represent defendants in sophisticated organized crime or drug cases without getting into bed with their clients," he said.
Such attacks were an unexpected and unwelcome outcome of get-tough-on-crime legislation, he said, including mandatory sentencing guidelines approved in 1987.
These guidelines require tough sentences for federal crimes and give judges little leeway in reducing them. So one of the few ways a defendant can win a reduced sentence is to snitch on someone else in exchange for a recommendation from prosecutors for a reduced sentence. And what easier target for a desperate informant than his lawyer?
The Justice Departments Thornburgh Rule, which allows federal prosecutors to ignore ethics guidelines in the states in which they operate, can exacerbate the problem, Aronwald said.
For example, state ethics guidelines forbid contacts between prosecutors and a defendant unless the defendants attorney is present. The Thornburgh Rule allows prosecutors to talk to defendants without the defense attorneys knowledge, as happened in the Mancuso case.
A measure approved by Congress this year would require the Justice Department to end its use of the Thornburgh Rule next year, but the Justice Department is already asking Congress to repeal the new law.
"Thornburgh took a position which frankly shocks the conscience of most judges and lawyers," Aronwald said. The guideline means if you were a federal prosecutor, "you could ignore whatever ethical prohibitions there are."
John Wesley Hall Jr., a criminal defense lawyer who lives in Little Rock, Ark., and wrote a law book on legal ethics, said that too many prosecutors see defense attorneys as easy targets. If charges are brought against a defense attorney, there should be more than just an informants allegations, he said.
"Any prosecutor who indicts without more information than his informant should be disbarred anyway," Hall said, "but they do it all the time.
"Im scared. Every time I talk to a guy Im worried that he is wired."
Thats not to say some defense attorneys dont cross the line and deserve to be targeted. But the Post-Gazette found instances where tactics used against defense attorneys seemed to have less to do with their crimes and more to do with their success in court.
Aronwald said Justice Department officials arent following their own rules regarding investigations into defense lawyers rules written to ensure that lawyers receive the same due process safeguards as any American.
"You cant leave these types of decisions to some line prosecutor, or an ambitious U.S. Attorney," he said. "But it happens all the time. It has caused me to have this sense that while we have to continue doing the work we do, we have to make sure to insulate ourselves as much as possible so that we dont fall victim to false accusations," he said.
"That a lawyer zealously represents [a client] doesnt mean the lawyers a co-conspirator."