Wrath of
vengeance
Prosecutors take aim at defense
attorneys
December 8, 1998 By Bill Moushey, Post-Gazette Staff Writer
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In the Dec. 8 installment of the Post-Gazette
series ''Win At All Costs,'' the name of San Francisco defense
attorney Ronald Minkin, who informed on his clients to federal
agents in order to escape a prison sentence on drug charges, was
inadvertently switched with the name of one of his clients. The
government's case against that client, Steven Marshank, was
dismissed because of the prosecution's outrageous conduct. The text
below reflects the correction. |
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Patrick Hallinan,
above, is part of a prominent family of lawyers in San Francisco.
When defending accused drug trafficker Ciro Mancuso, he prevailed in
contentious negotiations with a federal prosecutor to get a deal for
Mancuso that would send him to prison for 10 years instead of life.
Afterward, the prosecutor approached Mancuso with an even better
deal: implicate Hallinan in a criminal drug conspiracy and walk
free. Hallinan beat the charges in court and Mancuso went to prison.
(San Francisco
Chronicle) |
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 Mancuso’s "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 Mancuso’s 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 Nevada’s
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 Department’s 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 defendant’s attorney is present.
The Thornburgh Rule allows prosecutors to talk to defendants without the
defense attorney’s 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 informant’s
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.
"I’m scared. Every time I talk to a guy I’m worried that he is
wired."
That’s not to say some defense attorneys don’t 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 aren’t 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 can’t 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 don’t fall victim to false accusations," he said.
"That a lawyer zealously represents [a client] doesn’t mean the
lawyer’s a co-conspirator."
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