Defense Articles

In 1995, Weitzman left a 30-year legal career to join Universal Studios, where he served as executive vice president of corporate operations. He resigned three years later; and engaged briefly in managing startup technology firm Massive Media Group, which shut down in late 2000. In November, he returned to his law practice, becoming a partner at Proskauer Rose LLP’s LA. office.

Question: Why return to the practice after more than six years on the corporate side?

Answer: I just got bored. I was an entrepreneur in both spirit and practice from the time I got out of law school. I had my own firm, I dealt with high profile cases that required decision-making skills and thinking on your feet. In the large corporate world, decision-making is more difficult because there are a number of constituencies you have to deal with. You have to have more patience than I had, and you have to have the fortitude to be able to play the politics involved with corporate life. It’s just a reality. And I’m probably not the most political person in that situation.

Q: What is the difference between serving in the corporate versus the legal world?

A: In the corporate world, you really have to deal with getting the most you can out of the people who run the various businesses underneath you. It’s really a skill set of managing individuals. I think the meetings tend to be longer than they should or could be.

Q: Do you think of yourself as a celebrity lawyer?

A: I’ve been fortunate over the years to represent some of the most high profile cases and personalities. I definitely don’t look at myself as a celebrity. I’ve had many clients say to me, “The only reluctance I have in hiring you is that you’re a celebrity lawyer. Will I get more publicity?” My response is, “No. If you’re not a celebrity walking in the door, and it’s just another case, with all due respect to the media, they’re not interested. It’s just another case.”

Q: You were initially retained in the O.J. Simpson case, only to step down.

A: I didn’t want to have anything to do with that case for fairly obvious reasons. You had a judge who was star-struck, you had lawyers who played to the camera, you saw all the negatives in lawyers’ personalities. There are people whose opinions are that the wrong verdict was arrived at in that trial. I am one who holds that opinion.

Q: What is your take on the Robert Blake case?

A: If I were representing Mr. Blake, I would talk less and evaluate the evidence more. You’ve got Harland Braun (Blake’s attorney) out there criticizing when he’s told us he’s still got to read 35,000 pages of discovery. You have to wait and see what the evidence is. The District Attorney has made a charge and an arrest for murder. They either have the evidence, or they don’t.

Q: How do you feel about cameras in the courtroom?

A: The Simpson case alerted the system, and probably the public, to the dangers of cameras in the courtroom. I don’t think there should be cameras in the courtroom. I think the people who say cameras should be there because the public has a right to know totally miss the issues. That’s just created so someone can sell time, as an entertainment vehicle. There is no newsworthiness to real time reporting of what goes on in the courtroom. That’s just baloney, in my opinion. And it changes the landscape of what takes place in the courtroom. Anybody who thinks lawyers, judges and witnesses aren’t aware of the cameras and that it doesn’t have some impact on them is being disingenuous or naive. The reality is it changes it all.

Q: How has media coverage of high-profile cases changed over the years?

A: Cable really changed the landscape. It required more of an entertainment mix to draw the viewers in. De Lorean was interesting because it was the first time something was covered day in and day out by the media. It was a change in the way television news reporting was done.

Q: Do you think courtroom drama is out of control?

A: It’s totally out of control. Most people can’t say no to the cameras. The media plays it up for entertainment purposes. It makes good business sense. if I can get somebody on camera to say something outrageous, then great. They can promo it and sell more ads. But I’m not so sure you do the client any good that way. And it really shouldn’t be about the lawyer.

Q: And now you’re out of criminal defense.

A: I do virtually no criminal defense anymore. Not to say I wouldn’t do it if the case came along, but I’ve been there, done that. Now it’s straight business litigation and transactions. Partnership disputes, corporate issues dealing with shareholder lawsuits. I’ve been involved in mergers and acquisitions. I’ve done some labor disputes and disputes in litigation, real estate matters.

As with Ayres’, Scull’s prosecutors built their case on the back of a search warrant, which prosecutors won to search through the psychiatrist’s medical records for potential victims. However, an appellate court later ruled that the court order granting the search warrant was a violation of psychotherapist-patient privilege.

“If we’re correct, then a search warrant authorizing the wholesale discovery of new victims would have been illegal,” Weinberg said, outside the court room, of Ayres’ case.

If a judge grants Weinberg’s motion, the DA’s case against Ayres could be seriously crippled: Prosecutors initiated their case against Ayres with the help of three alleged victim, each of whom was located after a San Mateo Superior Court judge issued a search warrant of Ayres’ medical records.
Nonetheless, prosecutor Melissa McKowan indicated in court that the defense’s plans to file the motion would not affect the District Attorney’s criminal prosecution of Ayres.

The DA is charging Ayres with a total of 21 counts of lewd and lascivious acts against seven children younger than 14. According to court records, five of the seven victims range in age from 21 to 29 and claim to have been abused between ages 9 and 12.
REDWOOD CITY — The defense attorney for Dr. William H. Ayres, the child psychiatrist suspected of molesting dozens of pre- adolescent boys in San Mateo County for decades, will file a motion invalidating the search warrant upon which the DA has built its entire case.

Doron Weinberg, Ayres’ attorney, told a San Mateo County judge that he plans to file the motion, but had not decided whether he plans to do so before or after Ayres’ preliminary hearing, which was scheduled today for June 28.

The court said the decision is not retroactive. In the instant cases, the court allowed the four defendants to proceed with their late appeals. One had missed the deadline by five years.

In the second case, the high court said defense attorneys in future must raise all possible arguments as early as possible in murder trials.

Because the lawyer for convicted murderer Clayton Webster had not listed nine issues he wanted to argue, the justices gave Webster a new hearing and set new rules for the future.
The New Jersey Supreme Court reduced the time limits for criminals to appeal their convictions and sentences and restricted frivolous claims.

“A defendant who has been advised of his right to appeal as provided under [state law] and fails to prosecute his appeal in a timely manner is not entitled to relief,” said the court in jointly deciding the cases of five criminal appellants in two separate rulings.

In a consolidation of four appeals cases, the justices ordered rigorous enforcement of a rule requiring criminal appeals to be filed within 45 days, with a possible extension of 30 days for good cause.

A Kane County woman accused of fatally stabbing her disabled 34- year-old daughter likely will need psychological testing, her attorney said Friday as he asked that her bail be lowered so she can be released from jail.

Charged with two counts of first-degree murder, Betty C. Whitten remains in the Kane County Jail on $2 million bail.

“It’s excessive under the circumstances,” said her attorney, Herbert Hill, who asked Friday for a hearing to lower her bail. “We think she should be entitled to some lower bond.”

Whitten, 58, is accused of stabbing her eldest daughter to death Monday in the family’s rural home outside St. Charles. Her daughter, Nyakiambi Whitten, was handicapped by cerebral palsy, authorities said.
After Nyakiambi Whitten was slain, her mother allegedly put her body in a family car, drove with her to St. Charles, then swerved the vehicle off a bridge over the Fox River in what investigators said appeared to be a suicide attempt.

MOM’S MENTAL STATE SCRUTINIZED

Betty Whitten survived the crash with minor injuries and was charged a day later with murder.

Hill said he expects to have Whitten, who has no criminal record and has been described as being devoted to her daughter, evaluated to determine what her mental state was at the time Nyakiambi was slain.

“I think that’s likely at some point,” he said, although he declined to say if he might raise an insanity defense.

Authorities are exploring whether Whitten, who was her daughter’s main caregiver, may have been depressed or despondent over her daughter’s condition.

Kane County prosecutors will oppose any effort to reduce Whitten’s bail, assistant state’s attorney Greg Sams said.

I. INTRODUCTION

The 2003 United States Supreme Court case Wiggins v. Smith1 left an understated though key mark on the Court’s ineffectiveness of counsel doctrine. Wiggins reiterated the pre-existing approach that, in Sixth Amendment ineffective assistance of counsel claims, a criminal defense counsel’s “strategic” decisions are entitled deference only so long as those decisions are supported by reasonable investigation when that decision necessitated such an investigation.2 However, calling a decision a strategic one is not a sure remedy for defense counsel in an ineffective assistance case.3 If counsel’s claimed investigation is seen by the Court as, in fact, unreasonable, his former client’s ineffective assistance claim is not doomed solely because counsel claims his action, or lack thereof, was a strategic or tactical decision.4
Wiggins serves as a reminder of the importance of the Strickland v. Washington5 test-the test that determines whether a criminal defendant’s Sixth Amendment right to effective counsel has been violated.6 Further, it serves as a warning that while attorneys are granted much deference in their counseling of criminal defendants, this deference is not unlimited.7 Wiggins describes the Strickland test in a way that is conceptually similar to the business judgment doctrine in corporate law. The theme of this Note is to explain these two doctrines-the Strickland test in its criminal sphere and the business judgment doctrine in its civil sphere-in order to highlight the striking similarities between them. Consequently, this Note begins with a discussion of the Strickland test. Part III chronicles the Strickland test as it was revisited in the Wiggins decision. Finally, Part IV describes the business judgment doctrine and how, in the corporate law context, it is conceptually similar to the Strickland test in the criminal context.
II. THE STRICKLAND TEST

Under the Sixth Amendment, defendants possess a constitutional right to counsel, and the Supreme Court has determined that this includes the right to effective assistance of counsel.8 Therefore, lawyers have a duty to act as competent advisors and provide competent representation to each client.9 However, should counsel fail in this duty, a defendant can seek post conviction relief and make a claim for ineffective assistance of counsel.10 Claims range from the more general, including lack of preparation and lack of requisite experience or skill in handling the case, to more spécifie claims, such as the failure to investigate an issue, the failure to object to evidence, or the failure to call or cross-examine witnesses.11

Strickland v. Washington established the legal principles that govern claims of ineffective assistance of counsel.12 The Strickland test has two prongs. First, the defendant must “show that his or her attorney’s performance was so ‘deficient’ that ‘counsel was not functioning as “counsel” guaranteed by the Sixth Amendment.’”13 To establish this, the defendant must show that counsel’s performance fell below an objective standard of reasonableness.14 While the Court has declined to articulate specific guidelines for appropriate attorney conduct, it has instead emphasized that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”15 In analyzing this prong, the reviewing court must begin with a presumption in favor of the attorney and must determine whether the strategy chosen by counsel was within the range of available, professional, reasonable judgments, giving the attorney room to make “tactical decisions.”16 Therefore, if counsel can show that his or her decision was a tactical one that was among available choices at the time, counsel’s performance will be presumed to be reasonable.17

Second, the defendant must also prove that the outcome of the case was due to the attorney’s performance at trial, thereby rendering the outcome so unfair that the outcome is unreliable.18 Further, in Lockhart v. Fretwell,19 the Court refined the Strickland prejudice prong, holding that the inquiry should not focus singularly on whether the outcome would have been different without the performance of counsel, but rather on whether the attorney’s performance made the proceeding fundamentally unfair or unreliable.20 Simply making a showing that counsel’s actions could have had an effect on the outcome of the trial or that the errors made by counsel might have been detrimental to the defense’s case is insufficient to show that the outcome of the case was prejudiced.21 The defendant must show that “but for counsel’s actions, the result of the proceeding would have been different.”22

In reality, the Strickland test has been nearly impossible to satisfy: “Courts have repeatedly refused to provide oversight of criminal defense attorneys … .”23 Specifically, the two elements needed to establish ineffective assistance of counsel have been almost impossible to prove in practice.24 One of the roadblocks for defendants seeking an appeal based on ineffective assistance is attempting to overcome the prejudice prong of Strickland?’5 Here, it is extremely difficult to prove that but for counsel’s actions, the outcome of the defendant’s trial probably would have been different.26 Often evidence against a defendant is so overwhelming that courts rule that, although the attorney’s performance may have been egregious, the outcome would have been the same even without the attorney’s poor behavior.27 In fact, opponents of the prejudice prong argue that “[i]n practice, . . . almost nothing short of proof of actual innocence will merit a reversal of conviction, however unfairly obtained.

I. INTRODUCTION

For a prosecutor, exercising discretion in choosing which cases to prosecute is a necessary part of the job. Selective prosecution of the laws is inevitable. The fact that time and resources are limited necessarily forces a prosecutor to choose to prosecute some cases and not to prosecute others. But when a prosecutor’s decisions about which criminal cases to prosecute are based upon impermissible grounds such as race, religion, or exercise of First Amendment protected rights,1 the Equal Protection Clause is triggered,2 and the prosecutor’s exercise of discretion is constitutionally suspect.3 To protect individuals against such a violation of their rights, a criminal defendant may make an assertion, independent of the merits of the criminal charges against her, that the prosecutor has brought the case for forbidden reasons.4 However, the Supreme Court has intentionally erected a seemingly insurmountable barrier to the successful assertion of such a claim,5 largely because the Court does not want to involve itself in reviewing the exercise of prosecutorial discretion, “a ’special province’ of the Executive.”6
Selective enforcement of the immigration laws, however, is constitutionally different from unconstitutional selective enforcement of the criminal laws. In Reno v. American-Arab Anti-Discrimination Committee,7 the Supreme Court held that an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against her removal.8 This holding effectively foreclosed aliens selected for removal from obtaining a remedy for what seems, on its face, to be a constitutional violation; in American-Arab AntiDiscrimination Committee, the Immigration and Naturalization Service conceded that protected First Amendment activity was the basis for selecting the respondents for adverse immigration action.9
Perhaps a significant reason for the American-Arab Anti-Discrimination Committee holding is that enforcement of the immigration laws stands at the crossroads of the procedural requirements of a normal criminal trial and the Executive’s plenary powers over immigration10 and national security.11 In an immigration removal proceeding, the protections of the Bill of Rights apply,12 but the Executive has an increased level of deference in certain matters that may limit the procedural rights an individual would otherwise have in a full criminal proceeding.13

Nonetheless, the Court’s holding in American-Arab Anti-Discrimination Committee rests on a shaky foundation. Regardless of the Executive’s plenary powers over immigration and national security, the Equal Protection Clause protects all “person[s]”14 from discriminatory enforcement of the laws,15 a substantive guarantee. If the Executive intentionally enforces the law based upon race, ethnicity, or other protected activity, as it admitted doing in American-Arab Anti-Discrimination Committee, then it is violating the substantive rights of individuals.16 The structural nature of the Constitution is such that, when the two are in conflict, the substantive guarantees of the Bill of Rights should trump the Executive’s claims arising from exercise of the plenary power over immigration; but this constitutional norm does not always stand up in the immigration setting where courts have been reluctant to apply constitutional principles to limit the plenary authority of either Congress or the Executive.17 The American-Arab Anti-Discrimination Committee holding takes this deviation one step further, as it now appears as though a constitutional violation may occur without any corresponding remedy.

Two hundred years ago in Marbury v. Madison, the Court stated that where there is a constitutional right violated, there is a remedy.18 In American-Arab Anti-Discrimination Committee, the Court did not hold that intentionally discriminatory enforcement of the immigration laws does not offend the Equal Protection Clause, only that 8 U.S.C. § 1252(g) deprives federal courts of jurisdiction to hear claims on behalf of an alien arising from the Attorney General’s decision to commence proceedings, adjudicate cases, or execute removal orders.19 The Court did not elaborate on why this provision, which effectively denies aliens a remedy for an equal protection violation, passes constitutional muster. It simply held that aliens unlawfully in this country have no right to assert selective enforcement as a defense to their removal proceedings.20

This Note is premised upon the notion that, regardless of an alien’s inability to assert selective enforcement as a defense to her removal, selective enforcement of the immigration laws based on impermissible grounds is nonetheless unconstitutional. The purpose of this Note is twofold. Part II explores whether ethical restrictions can or should be used to deter unconstitutional selective enforcement of the law. Part III suggests an alternative remedy arising under 42 U.S.C. § 1983 for aliens who have been unlawfully detained after their removal can be effected. The Note concludes that a series of successful § 1983 claims could (but is unlikely to) function as an external enforcement mechanism preventing enforcement of the immigration laws in a manner that seems on its face to be both unconstitutional and unethical.

OAKLAND — Attorneys for men with ties to Your Black Muslim Bakery who are charged with trashing two West Oakland liquor stores in 2005 asked a judge Monday to identify three confidential police informants who helped identify their clients.

Alameda County Superior Court Judge Morris Beatus did not rule on the request, and will interview the informants in a closed hearing Jan. 3 to determine whether to provide defense attorneys with their identities.

The prosecutor will be present at the hearing, but defense attorneys won’t and must submit their questions in writing beforehand.
Yusuf Bey IV, a Your Black Muslim Bakery heir and alleged mastermind of the liquor store attacks, and five others are charged with felony vandalism, hate crimes and false imprisonment for allegedly vandalizing San Pablo Market and Liquor and New York Market on Nov. 23, 2005.

Bey IV is the son of bakery founder Yusuf Bey, who died in 2003 amid allegations of sexual abuse by a former bakery employee.

Confidential informants and eyewitnesses identified Bey IV and five others — Donald Cunningham, Ajuwon Muhammad, Dyamen Williams, Kahlil Raheem and Jamall Robinson — after viewing a security camera videotape that showed a group of suit-clad men smashing liquor cases and bottles of booze.

Police were told by store owners and employees that the vandals chastised them for selling alcohol, which they charged is against the tenets of their Muslim faith.
Defense attorneys also want Oakland police to turn over all records associated with a fire and an alleged kidnapping that occurred at the New York Market five days after the vandalism. The attorneys also want records from a company that investigates insurance fraud.

Bey and the others have not been linked by police to the suspected arson and kidnapping, and their attorneys want the information so they can see if one of the market’s employees deliberately set the blaze and faked the kidnapping.

Defense attorneys argue that if the fire and kidnapping were staged by someone who identified their clients as vandals, then they should be able to use the information to impeach that person’s character on the witness stand. Your Black Muslim Bakery is not affiliated with the Nation of Islam, and is a local group whose stated mission is to empower troubled people to better their lives. But the organization’s leaders have been hampered by violence and criminal charges since Bey’s death.

TOKYO, Feb. 14 Kyodo

In the early hours of an April morning in 2002, Wendy (not her real name) was raped by a U.S. serviceman inside her van at a parking lot in Yokosuka, Kanagawa Prefecture.

After an insufficient response from the Japanese police, realizing there was no 24-hour rape crisis center in Japan and seeing that both Japanese prosecutors and the U.S. Navy had decided not to pursue charges against the suspect, she became determined to stand up and seek change so that future victims would not have to go through what she did.
In a civil lawsuit she filed to seek damages from the perpetrator, who was a crew member of the U.S. Navy’s aircraft carrier Kitty Hawk, the Tokyo District Court recognized in November 2004 that the defendant raped her and ordered him to pay her 3 million yen.

But Wendy has no way of claiming the payment from the man, as he left Japan during the course of the trial, was released from the U.S. military and his whereabouts remains unknown.

Her fight has been a difficult one, as her mostly single-handed efforts have often brought her up against a wall of bureaucracy in both Japan and the United States. Being an Australian citizen residing in Japan has also complicated things.

”There are three countries involved, but who will help me?” said Wendy, who has recently written to U.S. Defense Secretary Donald Rumsfeld and Rear Adm. James Kelly, the commander of the U.S. Naval Forces in Japan, seeking prompt and proper investigations into her case.
She also wrote to Australian Prime Minister John Howard, asking for her government’s assistance in facilitating such investigations. But she had not received any substantive responses from any party as of Sunday.

”How many more people have to be murdered and raped before someone does something?” Wendy said, referring to continued crimes and accidents involving U.S. military personnel in Japan, including the Jan. 3 murder-robbery of a Japanese woman in Yokosuka in which a U.S. Navy sailor has been indicted by Japanese prosecutors.

”The American military is supposed to be here to protect us, but they’re obviously not protecting us,” she said.

Masahiko Goto, a lawyer in Yokosuka, said one of the difficulties in resolving cases such as Wendy’s is the existence of the Japan-U.S. Status of Forces Agreement which prevents Japanese authorities from having sole jurisdiction over the cases.

”The problem is that we have a situation in which the jurisdiction and the right to investigate lie both on the Japanese and American sides, creating a vacuum in which some victims cannot get legal redress,” Goto said.

”Once they (the perpetrators) escape into the U.S. bases, it becomes very difficult for the Japanese police to investigate, and if they return to the United States it becomes even more difficult, so the victims often have to concede,” he said.

The Public Affairs Office of the commander of the U.S. Naval Forces in Japan confirmed that the sailor in Wendy’s case was released from the navy in October 2002 and said the incident has been concluded as Japanese authorities decided not to indict him and the U.S. Navy also determined a court-martial was not necessary.

The office declined to comment on the civil court case, saying it is a private matter between the plaintiff and the defendant.

Dorothy Mackey, a former U.S. Air Force captain and commander who is also a survivor of multiple rape and abuse by fellow U.S. military personnel, said it is a ‘’standard operating procedure” for the U.S. government and military ”to hide, destroy or ignore evidence and protect its own military criminal members.”

She also expressed disappointment with the Japanese prosecutors’ decision not to indict the suspect in Wendy’s case, saying their actions ”have resulted in leaving every person in Japan open to brutal attack” by members of the U.S. military.

Mackey, who runs a group in the United States called Survivors Take Action Against Abuse by Military Personnel, warned that rapists who go unpunished are likely to commit similar crimes again.

Wendy, who is in her 40s and has lived in Japan for more than 20 years, is also hoping to have the Japanese laws and systems revised so that the police will deal properly with rape victims, including ensuring that they receive immediate medical attention.

When she went to the police in Yokosuka just after she was sexually assaulted, she wanted to go to a hospital immediately to be examined and treated for the injuries and bruises she had sustained over her body.

But she said the Japanese police told her she had to go and look for the perpetrator and took her back to the parking lot where they had her explain everything that happened and asked her to reenact the crime. When she refused, they had a police officer play her part as she reluctantly directed.

INTRODUCTION

In the spring of 2004, federal prosecutors sought the cooperation of Matthew Cooper of Time magazine and Judith Miller of the New York Times in revealing the name of their confidential source who disclosed that Valerie Plame was a Central Intelligence Agency operative.1 Plame’s name was leaked to the press by senior government administration officials, in apparent retaliation for an article Flame’s husband wrote criticizing the administration.2 Cooper and Time eventually cooperated with investigators, but Miller refused to divulge her source and spent eighty-five days in jail for contempt.3
The subpoena of such high-profile journalists comes during a time of low public confidence in the media as well as uncertainty regarding exactly what type of legal protection is afforded to journalists seeking to protect confidential sources.4 This Note advocates the formation of a stronger and broader reaching reporter’s privilege so as to better protect confidential sources. The technicalities of creating the privilege and determining exactly what should lie within the privilege’s scope falls outside the reach of this Note, however. Rather, this Note looks to the well-established and well-maintained attorney-client privilege as a basis for advocating for the strengthening and broadening of the reporter’s privilege-during a time in which it has come under fire-because of the public policy benefits it provides to society.
This Note is divided into three parts. Part I traces the origins and developments of the two privileges, noting the contrast between the attorney-client privilege’s deep roots in notions of a contractual and ethical relationship between attorneys and their clients, and the lack of such a foundation in the reporter’s privilege. Part II summarizes the current state of each privilege, noting that the attorney-client privilege receives broad and uniform treatment in courts, whereas the state of the reporter’s privilege is much more unsettled. Part III points out the problems that arise from application of both privileges and argues that just as the benefits derived from the attorney-client privilege are deemed to outweigh its downsides, so too do the benefits of the reporter’s privilege outweigh the problems that may surface in its application. This section concludes by noting that although the reporter’s privilege may lack strong historical foundations, today it enjoys constitutional, legislative, and judicial support, each of which are strong factors favoring broad recognition.

I. HISTORY AND DEVELOPMENT OF THE PRIVILEGES

A. ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege precludes disclosure to third parties of communications between attorneys and their clients.5 The privilege’s foundation lies in the contractual and ethical relationship between lawyers and their clients. The concept of the privilege, however, first arose in Roman law, which stated that slaves could not reveal their masters’ secrets.6 Perhaps somewhat unceremoniously grouped with slaves and servants, attorneys too, were not permitted to testify against their “masters,” so as to avoid corruption and promote notions of confidence and trust within a master’s family.7 Elizabetheans in fifteenth century England narrowed the scope of the privilege to protect only communications made in the course of an attorney-client relationship; an attorney, it was reasoned, took a “code of honor” and refused to turn “informer” against a client.8

The rationale underlying the privilege changed in eighteenth century England, as notions of oath and honor to the client were supplemented by the goal of promoting an attorney’s fact-finding process.9 American jurisprudence espoused a similar rationale when it adopted the attorney-client privilege, for its purpose was to “promote freedom of consultation of legal advisers by the clients” and “remove the apprehension of compelled disclosure by the legal advisers.”10 Thus, this aspect of the privilege honors the sanctity of the contractual relationship, based on the theory that the quality of attorney representation relies upon open and frank communication with a client. Additionally, the privilege retains the traditional belief that an attorney takes on an ethical obligation-an “oath”-not to violate a client’s trust and confidence.

B. REPORTER’S PRIVILEGE

The reporter’s privilege protects both the source of information and the information that is provided in confidence to reporters. Unlike the attorney-client privilege, however, the reporter’s privilege lacks the ethical and contractual foundations of the attorney-client privilege. Journalists have sought to protect confidential sources since at least 1848, when a reporter refused to reveal the identity of a source who gave him a draft of a secret treaty.11 Various motivations spurred these early claims for recognizing a reporter’s privilege. First, journalists hoped to elevate the status of their profession. As Stephen Bates argues, the issue of reporter’s privilege first arose during the “dawn of the nation’s age of professionalism,” and journalists who sought a privilege were “equating their work, and its social value” to that of more established professions with certain protections, such as attorneys.12 second, and more persuasively, journalists argued that protecting a promise of confidentiality to a source ensured a greater flow of information to the press; no protection for confidential sources, they reasoned, would result in a chilling effect, causing sources to be afraid to speak with reporters.13 Third, some reporters opted for a more ethical route, claiming that the “norms of their profession” and “personal codes of honor” mandated that they not reveal confidential sources.14 Although early court decisions generally did not recognize a reporter’s privilege, state legislatures began enacting statutory shield laws granting reporters protection of confidential sources as early as 1896.15

NTRODUCTION

The rule against communication with adverse parties is fairly clear-such communication is not allowed. In the criminal context this rule is generally thought to protect defendants from the coercive power of the government. The rationale usually referred to for disallowing communication between prosecutors and defendants is that the government, through the prosecutor, is interested in securing convictions and will therefore not give defendants objective information, nor will prosecutors protect the interests of defendants whose liberty is at stake. Model Rule 4.2 operates to require prosecutors to obtain consent from a defendant’s attorney if communication with the defendant is to be allowed. Requiring the defendant’s lawyer to oversee communication between a defendant and a prosecutor safeguards the defendant’s rights in an adversarial system.
The above is the simplest understanding of a rule that, on its face, seems clear-cut and rational. In order to understand the evolution of this rule and the controversies that have surrounded federal prosecutors, it is necessary to examine the dynamics affecting criminal prosecutions. This Note will specifically examine plea negotiations and the no-contact rule in the criminal context.
While the hope is that defense attorneys will protect their clients’ rights, sometimes prosecutors may be in a better position to aid the defendant in making a fully informed decision. Prosecutors often know more about the aims of the government and have more information about what evidence the government has available to pursue a conviction. Further, there can be pressures on defense attorneys that stem from the need to maintain a fruitful relationship with prosecutors and judges, and these pressures may effect how defense attorneys advise individual defendants. Although intervention by prosecutors, through communication with defendants, might actually facilitate more efficient and potentially more fair outcomes for defendants, the idea of allowing this type of communication is generally frowned upon.

This Note will outline the history of Model Rule 4.2 in the criminal context, as well as the history of Model Rule 4.2 as it applies to controversies surrounding federal prosecutors. In addition, a general outline of significant court rulings regarding communication between adverse parties will be provided. This Note will then give an overview of different opinions regarding the proper scope and application of Model Rule 4.2, primarily as it applies to plea negotiations.

I. HISTORY OF MODEL RULE 4.2 IN THE CRIMINAL CONTEXT

The idea that an attorney should not communicate directly with an adverse party is well established in our criminal justice system. Prohibition of communication between prosecutors and defendants is thought to protect several important interests including: maintaining the attorney-client privilege, protecting defendants from manipulation by trained lawyers, encouraging the ability of defense attorney’s to monitor the status of their clients’ case, counseling defendants to not disclose information that is against their interests, and promoting the resolution of legal issues through discussion between trained legal professionals.1

Initially, the no-contact rule was suggested as a rule of courtesy.2 An early treatise on the subject merely suggested that contact should not be made with an opponent’s client unless the opposing counsel consented to that communication.3 Discouraging communication between adverse parties has since been incorporated into every formal body of ethical rules. The Canons of Professional Ethics and DR 7-104(A)(1) of the ABA Model Code of Professional Responsibility, which both preceded the Model Rules of Professional Conduct Rule 4.2, both clearly established that communication between adverse parties was not permitted.4 The current rule governing communication between adverse parties, which has been adopted in some form everywhere in the United States, is based on the Model Rule of Professional Conduct Rule 4.2: “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by the law to do so.”5 Generally, the position of the judiciary on communication between adverse parties is similar to that of Model Rule 4.2.(6)

II. HISTORY OF MODEL RULE 4.2 AS IT APPLIES TO CONTROVERSIES SURROUNDING FEDERAL PROSECUTORS

The application of Model Rule 4.2 to federal prosecutors has been steeped in controversy. Advocates of Rule 4.2 believe that it should apply to all prosecutors, while the Justice Department instituted several different policies attempting to excuse federal prosecutors from compliance with the no-contact rule. In 1980, the Department of Justice took the position that Rule 4.2 did not apply to federal prosecutors because federal prosecutors were governed only by the Constitution and federal statutes, and were not subject state ethical rules.7 This position followed a memorandum issued during the Carter Administration, which asserted that federal attorneys should be exempt from state ethical rules.8 Until 1988 and the decision of United States v. Hammond, this was the policy adhered to by federal prosecutors.9 In Hammond, a federal prosecutor knew that a suspect was represented by counsel, but nevertheless used an associate of the suspect as an informant.10 This informant contacted the suspect and recorded conversations that were later used as evidence against the suspect. The Second Circuit held that this use of an informant, when the prosecutor knew that the suspect was represented by counsel, was a violation of the no-contact rule.11 This ruling was the first resistance to the Justice Department’s policy of exempting federal prosecutors from compliance with state ethical rules.