In "Beyond the bright line: A contemporary right-to-counsel doctrine," in the Northwestern University Law Review, Summer 2003, Pamela Metzger describes a federal system that slants cooperation agreements against defendants, analyzing American practice under the 6th amendment.
Unlike other plea agreements, a cooperation agreement only requires the prosecution to make vague and largely unenforceable promises about sentence outcomes. The defendant promises to provide complete and truthful information. The defendant also agrees to disclose all past criminal activities. Further, the defendant agrees to testify in grand jury or trial proceedings and, when asked, to participate in monitored telephone conversations or engage in other surveillance-type activities, such as wearing a wire. The agreement also requires the defendant to agree to postpone his sentence until his cooperation is deemed complete.These problems are magnified in the practice of "pre-charge bargaining."
In exchange, the government makes only one promise: if the defendant provides substantial assistance in the investigation and prosecution of another individual, the prosecution will make a motion to the sentencing judge for a reduction of the defendant's sentence. Several caveats, and even an explicit threat, accompany this promise. First and foremost, the government is to be the sole judge of whether the defendant has truthfully and completely cooperated. The decision as to whether the cooperation rises to the level of substantial assistance will be left to the sole discretion of the prosecutor's office. Often a cooperation agreement does not specify the extent of the departure the government will request. And, even if it did, that request would not be binding upon the sentencing court. Finally, if the defendant fails to perform under the terms of the agreement, the prosecutor's office retains the right to use the defendant's statements against him at a subsequent prosecution for false statements.
Ultimately, the cooperation agreement is a gamble, in which the defendant assumes the risk. The parties expect the defendant's sentence to be tempered by the court's eventual ruling. But, if the cooperation comes to naught, or if the government deems the defendant's cooperation insubstantial, a defendant has no right to withdraw his plea, and he suffers the full penalties prescribed by law. The prosecutor's exclusive determination of whether the defendant has provided substantial assistance is unassailable unless the defendant can show that the government withheld the promised motion for unconstitutional reasons.
Pre-charge bargaining in the federal system has an extra dimension that adds to its importance in determining outcomes: cooperation with law enforcement.... A defendant who cooperates with authorities after all of his coconspirators have already cooperated or pled guilty does not provide substantial assistance, regardless of his candor in confessing and naming names. As a result, many defense attorneys advise their clients to provide substantial assistance before formal adversary proceedings have begun so that they can win the race to the courthouse door.With a value of justice and a criterion including due process, an affirmative could show that the risks, especially under charge bargaining, mean that defendants who do "make good" and cooperate can still face full punishment, even though they deserve better treatment for their cooperation and admission of guilt. Basically, this pre-turns any Neg case claiming that plea bargaining is just because testifying defendants merit less punishment.
An agreement to cooperate requires delicate negotiations. The process moves forward through a series of "auditions" that test the likelihood of the defendant's successful performance. Successful cooperation generally requires the defendant to "provide truthful, complete and accurate information" to the government. In exchange, the government agrees to file a motion asking the district court to reduce the defendant's sentence so long as the defendant provides substantial assistance....
Moreover, cooperation and full disclosure carry sentencing risks, risks that may be hidden from the unrepresented individual. For example, because guidelines sentences are based upon "relevant conduct," a candid admission by a cooperator may form the basis for a severe sentencing enhancement. In negotiated cooperation, many defense attorneys obtain for their clients a cooperation agreement that limits the ways in which the government can use information volunteered by the defendant as part of his cooperation. Absent such an agreement, sentence-enhancing information provided by a defendant can and will be used to calculate his guidelines range. With or without counsel, despite their strong motivation to reduce their sentences, cooperating defendants struggle to give candid responses to government questioning. The risks inherent in any cooperation debriefing are exacerbated when a defendant is unprepared for the proffer and lacks experienced counsel to assist him. The government's questions may confuse a cooperator who may be too nervous or too unsophisticated to understand what information the government is seeking. Intimidated by the interview process, a cooperator may not always focus on his best interests; after all, the uncounselled defendant knows only that the government, which arrested him (or has threatened to do so), is now asking him to answer incriminating questions. The cooperating defendant has a complex and confusing relationship with prosecutors and law enforcement. On the one hand, the government seems to be offering him a place, of sorts, on the government team. On the other hand, the defendant and the government have fundamentally adverse interests and, if negotiations break down, the government can withdraw its promised help and protection. In that event, litigation about those failed negotiations will pit the unrepresented defendant against the full weight of the government: it will be his word against the word of prosecutors and law enforcement.
Under the critical stage doctrine, the right to counsel attaches only "at or after the initiation of judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Therefore, by definition, pre-charge bargaining occurs prior to the time when the right to counsel attaches under the Kirby rule. However, the modern machinery of criminal prosecution is so finely developed that it is often "a mere formality" that the government has yet to indict a defendant. Pre-indictment negotiations are increasingly common; yet, the rigid critical stage doctrine means that there is a blanket rule that no right to counsel inheres in these proceedings no matter how concretely adversary they really are.
Your thoughts, as always, are welcome.