Prosecutors "doing justice" through osmosis - reminders to encourage a culture of cooperation.

• Author: Wilson, Melanie D.

A cooperating defendant (1) can be an invaluable source of insider information about unsolved crimes and unidentified criminals. For instance, in June 2007, the Federal Bureau of Investigation revealed that it had foiled a terrorist plot to bomb a fuel pipeline supplying the John F. Kennedy International Airport in New York based on assistance from a "cooperating," convicted drug dealer. (2) The cooperator had been convicted in a New York state court. (3) Subsequently, he agreed to pose as a terrorist and infiltrate a group suspected of developing the terrorist plan directed at JFK. The men composing the suspected terrorist group were ultimately charged in a federal district court in New York. According to news reports of the drug dealer's assistance to authorities, the cooperating defendant traveled overseas, including to Trinidad, where he met with the suspected terrorists and pretended to help in plotting the explosions. (4) He then reported surreptitiously to agents of the FBI about the progress of the plan. The drug dealer agreed to the risky task of infiltrating the terrorist group and, correspondingly, to provide the FBI with inside information about the group's activities because, like the typical cooperating defendant, he hoped to reduce the severity and length of his sentence for his state-court drug conviction. (5)

Commenting on why the FBI would rely on a convicted drug dealer for such an important mission, a former member of the FBI-NYPD Joint Terrorist Task Force explained: "In most cases, you can't get from A to B without an informant." (6)

Given the potential importance of cooperation, one might assume that the Department of Justice (DO J) and federal prosecutors (7) employ systematic methods to attract and process such tips and that prosecutors always pursue a cooperator's lead. Although there is no specific, scientific data to show how DOJ receives or handles information from cooperating defendants or to measure how aggressively prosecutors pursue cooperation, (8) the empirical evidence suggests that prosecutors could make more effective and more equitable uses of these important tips. (9) The limited data indicates that valuable cooperation is underutilized by the DOJ and that prosecutors within the Department can improve their consistent and vigilant use of credible cooperating defendants and the important information that such cooperators sometimes provide.

This Article posits that although federal prosecutors are shielded from any legal duty to pursue such leads, they always bear a separate duty to thoroughly and thoughtfully evaluate a cooperating defendant's information. This duty to carefully consider every cooperator's tip arises from a prosecutor's unique ethical obligation to "do justice." (10) The prosecutor's duty of justice requires careful consideration of seemingly valid tips because of the potential importance of the information to crime prevention and successful prosecution and because Congress has mandated that prosecutors seek equitable and proportional sentences for all defendants, it

Prosecutors must, therefore, act on all tips when action is required to fulfill the expressed mission (12) of the DOJ, which includes the goal of "ensuring the fair and impartial administration of justice for all Americans," and when pursuit of such information assists the prosecutor in carrying out the demand for sentencing fairness and uniformity expressed by Congress in the Sentencing Reform Act. (13)

The DOJ can foster a federal prosecutor's desire and ability to discharge this ethical obligation to assess cooperators and their corresponding information by creating a culture in which prosecutors are motivated and rewarded for thoughtfully evaluating such witnesses and for pursuing or rejecting such information equitably and effectively. DOJ should also encourage prosecutors to remain open to discussing the potential value of a cooperator's information with crime victims and sentencing judges. Such conversations will encourage prosecutors to take into account the value of victims' rights and Congress's sentencing goals when assessing cooperation in a given case.

This Article develops in five parts. Part I discusses the importance of cooperation to an effective criminal justice system. Part II examines the competing interests federal prosecutors often confront when deciding whether or not to follow a cooperator's lead and the sentencing inequity and the underutilization of valuable cooperation that can result from prosecutors' unguided evaluation of cooperating defendants. Part III outlines the federal prosecutor's ethical obligations and the general duty to "do justice" in her role as "minister of justice," and it discusses the ambiguous nature of the duty in the context of dealing with defendants who seek to assist in the investigation and prosecution of other persons and crimes. Part III also addresses the impact of a prosecutor's expansive discretion on her duty to "seek justice." Part IV explores the parameters Of the federal prosecutor's duty to adequately assess every cooperator's tip, given the value such tips can have in preventing and solving crimes and in ensuring that guilty defendants receive adequate, proportional punishment. Finally, Part V offers some thoughts on how a "culture of cooperation" can foster an individual prosecutor's ability to fulfill her ethical and professional responsibility to "do justice." In addition, Part V offers some practical suggestions to increase the positive pressures on and incentives for every federal prosecutor to make the most thoughtful and well-informed decisions about accepting or rejecting cooperation.

1. THE GOVERNMENT'S RELIANCE ON COOPERATION

   Although news reports and court cases are full of instances in which the government used a cooperating defendant's information to prevent, solve or successfully prosecute a crime, relatively few federal defendants are rewarded at sentencing for their efforts to assist the government in the prosecution of other crimes or persons. The 1999 U.S. Sentencing Commission's report to the Judicial Conference revealed that between 1995 and 1998, no more than twenty percent of defendants received a sentencing departure based on his or her substantial efforts to assist the government. (14) A more recent report of the Commission from 2005 found that only 15.2% of federal defendants received a 5K1.1 sentence reduction based on his or her assistance to the government. (15) Thus, while cooperation is an important law enforcement tool, it is used or, at least, rewarded in a small minority of cases, suggesting that prosecutors underutilize cooperation.

   1. The Importance of Cooperation

      The value of untapped cooperation is immeasurable, but the impact of cooperators and "snitches" on reducing and preventing crime is well documented. (16) Kendall Coffey recently compiled examples of some of the more famous cases successfully prosecuted with cooperating defendants, including the following: 1) a case in which Sammy "the Bull" Gravano helped convict "Teflon Don" John Gotti; 2) the trial of Martha Stewart in which Douglas Fanueil testified in exchange for "a sweetheart deal;" 3) the "Enron" case in which Andrew Fastow, former chief financial officer, testified against Jeffrey Skilling and Kenneth Lay. (17) The cases in which the government relied on cooperating witnesses to successfully prevent or prosecute crimes are too numerous to list. (18) Recently, albeit in the specific context of addressing international terrorism and the gathering of foreign intelligence information, the DOJ touted the potential significance of cooperators' information to crime prevention. In a memorandum dated January 10, 2007, Deputy Attorney General Paul J. McNulty reminded federal prosecutors that criminal defendants are potentially rich sources of valuable "f[oreign] i[ntelligence] information that may prove critical to thwarting terrorist attacks, espionage, sabotage, and other threats to our national security." (19) Testifying before the House Subcommittee on Crime, Terrorism and Homeland Security in 2005, former Assistant Attorney General Christopher A. Wray proclaimed that "[c]ooperation agreements are an essential component of law enforcement and are necessary to penetrate criminal organizations and to obtain convictions in court." (20) Wray further told the committee that crimes such as drug trafficking, gangs, corporate fraud and terrorism offenses would be difficult, if not impossible, to adequately investigate without cooperators. (21) Thus, in some contexts, the DOJ has expressly acknowledged the need to encourage cooperation.

   2. The Critics of Cooperation

      Law professors and other commentators have often criticized the government's generous use of "cooperating defendants," "informants," and "snitches." These detractors typically emphasize the risk of wrongful convictions that can accompany reliance on a cooperating defendant's information, while downplaying the benefits that such "snitches" can provide. (22) For instance, in claiming that the use of "snitch witnesses" can "[o]ccasionally ... result in dramatic miscarriages of justice[,]" George C. Harris cites the book, "Actual Innocence," which details the story of Ron Williamson, a man convicted of murder who was eventually freed by exonerating DNA evidence. (23) Other commentators have, similarly, maintained that "there is an inherently high risk that cooperating witnesses will testify falsely and will be believed by juries, thus resulting in convictions of the innocent." (24) Such legal commentators usually express particular skepticism at the way federal prosecutors prepare the cooperating witnesses to testify at trial. (25)

      The core of the criticism rests with the claim that prosecutors or their investigative agents act unethically, unprofessionally, or otherwise inappropriately in communicating with cooperating witnesses. On this point, Professor Alexandra...