The Ghosts of Prosecutions Past: Cooperating Defendants and the Ravages of Time

[author: Stephen Juris]

Pharaoh, the king of ancient Egypt, is often d...

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As practitioners who have represented cooperating witnesses in complex, white-collar criminal cases can attest, the lifespan of such cases typically is measured in years. With occasional exceptions, cooperating witnesses often plead guilty at the outset of a case, but their sentencing is put off until after the trials and sentencing of non-cooperating defendants. Even when cases proceed smoothly, the gap between plea and sentencing can be many years.

While a case is being built against the targets of an investigation, these cooperators are often a hot commodity. Depending on their role in the offense and their ability to connect the dots leading to more senior executives or more central participants in financial frauds, such witnesses frequently are the key to making or breaking a case. At trial, these witnesses are often the stars of the show. Accordingly, cooperators loom large in both the hearts and minds of line prosecutors.

Unfortunately, however, these sentiments are often fleeting. Even where the cooperator’s testimony results in a conviction, the prosecutors who brought and made the case may well have moved on to other positions (or even private practice) by the time of sentencing. Prosecutors change, as (albeit less frequently) do judges. And where the case does not result in a conviction — or where intervening legal rulings or the outcome of other cases cast doubt on the merits of the Government’s case — the ardor that greeted a cooperator’s initial assistance can be dampened considerably.

Like the Pharaoh who knew not Joseph, the replacement prosecutors who in turn find themselves tasked with a case that they did not bring — and in which they are not personally invested — will rarely know the case or the cooperator’s contributions in the same ways that their predecessors did. Nor will they have the benefit of the interpersonal relationships that often develop between prosecutors and their cooperators. For defense counsel, this disconnect can be vexing. A prosecutor who does not have an attachment to a case is frequently of less assistance at sentencing, where a more personalized acknowledgment of the cooperator’s contributions by the government can have a real impact. Particularly in a federal case, where the nature and extent of a cooperator’s “substantial assistance” in the prosecution of another is often a sine qua non of sentencing, what the prosecutor says — and how he or she says it — matters.

Moreover, for those cases in which either the outcome of trial or intervening legal rulings by other courts raise questions about the merits of the original prosecution, it can often be difficult to get the special attention that is often required in the interests of justice. Prosecutors like to move forward, not backward. With the passage of time comes a reluctance to revisit things that have already passed.

Ironically, the one area where the passage of time can help cooperating witnesses has gone unrecognized by most reported authorities. At sentencing, it is common for defense counsel and judges alike to invoke the passage of time and intervening efforts by the cooperating witness to acknowledge his or her wrongdoing as factors in favor of a reduced sentence. Indeed, in the well-publicized Cendant case the fact that one cooperator had been living under the burden of an anticipated sentence for nine years was a key factor in the court’s decision to give the cooperator a probationary term with home confinement. However, while this is a familiar — and reasonable — consideration in practice, it is not one that has occasioned any formal recognition outside of a few reported rulings. Why this is so remains unclear, but it may be yet another example of judicial common sense outpacing the evolution of the Sentencing Guidelines.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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