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Cooperate or fight? One of the Biggest Decisions in a Criminal Investigation and Possible Case.

Kish Law LLC

I left my Atlanta criminal defense law office this morning and drove to the federal building where I met my client for what is called a “proffer” session.  Basically, this is the first step in the process by which my client will agree to cooperate with investigators and prosecutors, with the hope that his assistance will lead to no charges or charges with a potentially reduced sentence.  A proffer is when the client goes to the prosecutor’s office and answers questions from the prosecutor and investigating agents.  My client and I already made this decision for him to cooperate after a lot of discussion.  However, while today was just the first step in going down the cooperation road, it made me think more about the decisions the attorney and the client need to make when deciding whether to fight the charges or give in and make the best of a bad situation.

Many people consult a criminal defense attorney after they learn they are under investigation for some possible crime.  A few people come to see me because they know they did something that could lead to an investigation, even if the investigators have not yet contacted the person. In these early stages, the key for the criminal defense lawyer is to fully understand what happened.  When, early on, the lawyer has a very good grip on the facts, potential crimes,  and possible defenses, the attorney is often in a position to do a lot of good for the client.  At this early phase,  investigators and prosecutors are sometimes just looking into whether they should, or should not, bring charges against a person or company.  If the defense lawyer feels he or she can talk the prosecutor out of charges against the client, it is often easier to do so early rather than later.  But, this strategy is not always the best course of action, especially if the attorney feels that there is a chance that the client could be convicted if the prosecutor does decide to bring a charge.  Going in to see the prosecutor too early can be a signal of weakness.  Some situations call for a “wait and see” tactic.  No two cases are alike, and the experienced criminal defense lawyer needs to consider what happened and whether this particular prosecutor seems to have the appetite for this particular type of case.

In other situations, like the case involving the client who went to do a “proffer” today, it is clear that cooperation is the best way to possibly avoid either getting charged or facing a serious sentence.  For example, my client already made some incriminating statements to law enforcement officials before he ever came to see me. I wish he had not done that, for it reduces my options when the client has already spoken with law enforcement.  Clients sometimes want to clear their conscience, or simply feel they “have to”  talk with the police or investigators.  Remember, no one is ever obligated to answer any questions from law enforcement, despite the lies that the agents and investigators will cleverly spin when trying to get a person to speak with them.  However, for the situation involving the client who today went in for the proffer session, cooperation is clearly the better route, for the investigators already had a lot of evidence before they went to speak with him.

Some people think they do not need an attorney when the matter is merely “under investigation.”  Obviously, many people are intelligent and can make decisions for themselves without having to pay a lawyer.  However, there is a reason for the many professional specialities in our modern world.  I would not want to do my own brain surgery or complex electrical wiring projects, and most people who use the services of an experienced criminal defense lawyer make a far better decision when deciding whether to fight or cooperate.

One final word on proffers and cooperation.  Once the client goes in for a full round of questioning during the proffer session, there is no going back.  The “proffer agreement” currently used by federal prosecutors usually says that the government cannot use the client’s statements, UNLESS  certain things happen.  One of those exceptions is the part of the proffer agreement that says the client’s statements can be used if the person, or his lawyer, takes an “inconsistent position” in some later proceeding.  I have had prosecutors claim this means I cannot even question witnesses at a later trial for that would be “inconsistent” with the client’s proffer statements to the effect that he did the crime.  Fortunately, I have been able to avoid this bit of prosecutorial over-exuberance, but it shows that once the client goes down the cooperation road, it is almost impossible to go back.

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