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November 1, 2006

Cooperation and the right to trial

Ellen Podgor of the White Collar Crime Prof Blog has this new commentary at law.com entitled, "Do Cooperation Agreements Diminish the Right to a Jury Trial in White-Collar Cases?".  Here is a taste:

The disparity in sentences between cooperators and those opting for a trial is a function of sentencing guidelines, which can dictate whether an accused receives what is essentially a life or death sentence.  It is also a function of prosecutors who leverage the enormous consequence of a jury trial against a reasonable sentence for providing cooperation.

The government needs cooperators to make their cases.  Cooperators also provide a more efficient system that reduces the costs for a government prosecution.  But when the risk of a conviction after trial is so distinct from that received for cooperating with the government, it diminishes the right to a trial by jury, an essential part of our constitutional democracy.

Justice Byron White, in the famed case of Duncan v. Louisiana, 391 U.S. 145 (1968) noted the importance of this right when he stated that "the right to trial by jury is granted to criminal defendants in order to prevent oppression by the government." Id. at 155.  We have to wonder whether this right is fully realized when so many individual defendants and companies are folding to government demands because of the high risk entailed in proceeding to trial.

November 1, 2006 at 05:45 AM | Permalink


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Caveat - I haven't read Professor Podgor's commentary:

I'm not sure if the legal theory is cooperation agreements are so oppressive they violate the right to trial or that cooperators are treated so favorably compared to those who go to trial the relative disparities violate equal protection.

As to the right to trial issue, anyone who has tried a case with cooperators knows that the jurors learn about each and every benefit given cooperating witnesses by the government and, in cases where they convict, the jury is unanimously satisfied that they are not so generous to prevent a finding of guilt.

As to the equal protection issue, the judges know the cooperators sentences or immunity deals (often they have already sentenced the cooperators themselves) and this disparity argument is routinely made. If there a limit to disparity? Probably. In my experience, though, the defendants are so different because of (1) acceptance of responsibility (2) 5Ks (3) guidelines enhancements that are readily provable post-trial that wouldn't be in a plea situation that the disparity is well within reasonable limits. Is the price for guilty defendants who go to trial stiff? Yes - that doesn't implicate the Constitution, IMHO.

Posted by: Tom | Nov 1, 2006 5:59:19 PM

I have been a criminal defense attorney for over twenty years, and the vast bulk of my practice has been in federal court. Based on my experience and observations, the disparities identified by Ms. Podgor in white collar criminal cases pale in comparison to those seen in federal drug and firearms prosecutions. The reason is that defendants who risk trial in those "black collar" cases often are subjected to onerous mandatory minimum sentences. The mandatory terms can be "stacked" if convictions are obtained, resulting in disparities that dwarf anything seen in the white collar arena. For example, in US v. Hungerford, (9th Cir. No. 05-30500 (October 13, 2006), the defendant went to trial and was convicted of conspiring to commit a series of armed robberies, along with seven 924(c) counts of using a gun in connection with the robberies. She drew a sentence of 159 years in prison because most of the 924(c) counts carried mandatory terms of 25 years each - to be served consecutively by law. The 9th Circuit affirmed, finding that 924(c) counts were constitutional. The codefendant, the principal actor who actually carried the gun and committed the robberies, cooperated and testified against Hungerford at trial. He got a sentence of 32 years.

Posted by: scylla | Nov 1, 2006 11:41:01 PM

The use of plea bargains in exchange for cooperation makes law enforcement arbitrary and capricious. Justice often depends on who got caught first and if he or she is needed to testify against any co-defendant, as happened in the case scylla mentioned. PBS's "Fronline" has an interesting program on the subject: The Plea.

Posted by: George | Nov 2, 2006 3:05:54 AM

I think they do violate the right to jury trial when the difference in sentences are so great that no reasonable person would risk the greater sentence.

And Tom, the problem is hardly anybody goes to trial with cooperators, so the protections you cite don't usually apply - typically prosecutors use their testimony to force pretrial pleas. Texas courts at this point are basically plea mills with 99.5% of cases pled out. So the cooperators (a.k.a., snitches) are rarely meaningfully vetted, certainly in any public trial forum.

Posted by: Gritsforbreakfast | Nov 2, 2006 3:28:40 PM

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