Chapter 1 Trial Starts Pretrial

• Library: How to Win an Acquittal (ABA) (2011 Ed.)

CHAPTER 1 Trial Starts Pretrial Puerto Rico "Rum Diary"

I got hired today to defend Luisa Inclan Bird, the Puerto Rican governor's top aide. The government is threatening to indict Luisa. And the governor. And a whole lot of other people. The investigation has been going on for months. Luisa was being represented by a local Puerto Rican attorney who was an ex-prosecutor. Best I can tell, he wanted Luisa to immediately agree to plead guilty and cooperate with the governments investigation against the governor. Now, sometimes a plea bargain and cooperation are the best options for persons accused of participating in crimes. Sometimes they're the only viable option-but I don't think that way, and I tell Luisa this. I like to fight for clients I believe did not commit crimes, and that usually means going to trial. Luisa liked hearing that. She was frightened. Apparently many people were urging her to make a deal and cooperate. But she wanted to do the right thing—to fight and clear her name. I liked Luisa from the moment I met her. And promised to start working on the case immediately and to meet with the governor's lawyers. The governor had several attorneys. One is Tom G., a wonderfully skilled and experienced lawyer from the Sidley firm in Washington, D.C. Another, a terrific trial attorney from Puerto Rico, Harry A. Harry and I had gotten to know each other well from the trial of the Caguas Bank case years earlier. And to respect each other. And to trust each other. I expected the case would be a rocky ride, but I knew I had good company.

Pretrial Diary

I've been working Luisa's case for several months. Today there was an indictment. We knew it was coming. The government's lawyers in particular had worked hard to try to convince the Department of Justice not to proceed. I'd met with the local prosecutors. I wanted to talk apology. They wanted to talk prison. We're no longer talking. We'll get a trial date set, and I'll start working right away on motions attacking the charges. And continuing to prepare for the trial Luisa and I know is inevitable. I spoke to Luisa about all this. Not an easy conversation. But we move ahead.

NO EGOS—JOINT DEFENSE AGREEMENTS

All lawyers have egos. Criminal trial lawyers have big egos. The really good trial lawyers know, however, when to show that ego and when to keep it in check. This becomes particularly important in multi-defendant cases. There, lawyers must work together, both pretrial and once the trial starts. Tasks may be divided and work shared. In the governor's case, the two defense teams complemented each other, particularly when it came to decisions about witnesses and cross examination. It is critical to identify early on any potential disagreements in tactics and approaches and then to resolve them. For example, the last thing a defense lawyer wants is to see an effective cross-examination undone by the questions of the next defense lawyer. So the dynamics of a multi-defendant trial are like a dance. They are choreographed as much as possible, but always leaving room for improvisation.

This dynamic is typically governed by what we call joint defense agreements (JDAs). Sometimes we call them "information sharing" agreements (thinking this sounds more benign). The JDA sets the ground rules for how lawyers and clients can interact in multi-defendant cases. But JDAs require care in the drafting and implementation, and can have problems arise later. And prosecutors are often suspicious of JDAs. They have a word for this suspicion—"obstruction of justice." OK—that's three words.

Basic Elements of Joint Defense Agreements

As summarized by Kathryn M. Fenton in "Conflict and Ethics Issues Arising from Joint Defense/Common Interest Relationships" (The Antitrust Source, December 2009), a JDA offers a route for a client and his lawyer to share privileged information with third parties sharing a "common interest" without waiving otherwise applicable legal privileges by this disclosure. The JDA is based on the joint defense privilege, which is accepted by most courts (footnotes omitted). But as Fen-ton observes, "there are differences in the type and degree of common interest required before the privilege is applied. At a minimum, if challenged, a party seeking to establish the privilege generally must show by a preponderance of the evidence that the shared communications were: (1) intended to be kept confidential, (2) made at a time the parties shared a common legal interest, and (3) exchanged in pursuit of that joint legal interest."¹

"Some courts have been antagonistic to JDAs and have read confidentiality obligations into joint defense relationships, using general conflict of interest principles to disqualify lawyers from representations adverse to participants in a joint defense group following their withdrawal."

Given the risks of possible disqualification, the language of a JDA must be carefully drafted. And the pros and cons of having a JDA must be discussed with the client.² Lawyers frequently make it a practice to include specific language in their JDAs specifically disclaiming any attorney-client relationship with the clients of other JDA participants," and anticipating potential withdrawals. And many lawyers limit JDAs to attorneys only and keep the clients away from the JDA process. Some lawyers even refuse to have their clients sign the JDA.

In the governor's case, once indictments were returned, the lawyers for the various defendants entered into a JDA. One or two lawyers, whose clients were negotiating plea bargains, did not. Eventually most of the defendants made deals, and several showed up at trial as witnesses against the governor and Mrs. Inclan Bird. This result was anticipated, and the JDA was carefully worded to protect against such developments. But it is not enough to have a JDA that is well written. JDAs permit the exchange of materials and information. JDAs do not require such exchange. Careful lawyers who anticipate parties withdrawing from a JDA are cautious in what they disclose. We acted in this manner in the governor's case, and no JDA problems emerged.

Still, relationships in multi-defendant cases can be tricky, and naively relying on the protections of a JDA can be foolish. A sample joint defense agreement follows.

sample Joint Defense Agreement

1. WHEREAS, the above-mentioned defendants and their counsel believe and find that they have a mutuality of interest with respect to the matters for which they have sought legal representation.

2. WHEREAS, each client and his or her counsel wish to pursue the separate but common interests of the respective client and believe that such interests will be furthered by the disclosure of matters of common concern between the respective counsel and law firms subject to the specific limitations and conditions set forth herein.

3. WHEREAS, each client and his or her counsel believe that such disclosures and exchange of information or matters of common concern are essential to the effective representation of such clients by such counsel.

4. WHEREAS, the parties hereto believe that their respective common interests can be advanced by their participation in a confidentiality agreement which shall prohibit the disclosure by each and every party thereto, of any information disclosed or exchanged or understandings reached between the parties thereto.

5. WHEREAS, the parties and their counsel express their desire to enter into this CONEIDENTIALITY AND JOINT DEFENSE AGREEMENT for their individual and mutual benefit and interests of their respective clients.

6. THEREFORE, the parties hereto agree as follows:

a. The parties may, from time to time, exchange or disclose information including but not limited to client and witness statements, interviews, photographs, recordings, memoranda of law, debriefing memoranda, factual summaries, transcript digests, documents and other such material and information which would otherwise be protected from disclosure to third parties, and that such disclosure or exchange is not intended to waive any attorney-client privilege, work product doctrine, or any other privileges or immunities otherwise available.
b. All work performed or work product disclosed by the undersigned attorneys and their firms pursuant to this agreement and any communications among the undersigned counsel and their clients in connection with these proceedings shall be conducted and protected pursuant to the "joint defense doctrine."
c. This agreement does not obligate the parties to share information.
d. Any communications among or between the parties hereto in connection with these proceedings are and shall remain confidential and protected from disclosure to any third party by the common interest privilege, the client's attorney-client privilege, the attorney's work product doctrine, and other applicable privileges and immunities.
e. This confidentiality agreement shall cover all information exchanged or disclosed between the parties hereto, including but not limited to all client and witness statements, interviews, photographs, recordings, memoranda of law, debriefing memoranda, factual summaries, transcript digests, documents, and other such material and information that would otherwise be protected from disclosure to third parties.
f. Such exchange of information is not intended to waive any attorney-client or work product doctrine, or any other privileges or immunities otherwise available.
g. None of the information obtained by any party hereto as a result of this agreement and after this agreement's execution shall be disclosed to third parties without the consent of those undersigned attorneys and their clients, who made the information available in the first instance because it is understood that said information is protected by the attorney-client privilege, the attorney work product doctrine, and/or other privileges or immunities.
h. If any person or entity requests or demands, by subpoena or otherwise, any

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