12 Comments

  1. shg
    January 4, 2011 @ 1:28 pm

    Absolutely mind-boggling. Since I wouldn’t have a clue who the players are in any event, what are the chances that defense counsel lacked federal experience and didn’t realize that filing his paper in the open would be a death warrant for his client? Even the sort of lawyers whose practice involves a race to the US Attorneys office knows better than to make a mistake like this. It just doesn’t happen, as everyone knows the signfiicant of disclosing the name of the rat.

    Unless, of course, the lawyers received a generous third party fee to represent the cooperator. Nah, that couldn’t happen.

    Reply

    • Mark Bennett
      January 4, 2011 @ 1:36 pm

      Nope. Lots of federal experience. My best guess is that someone forgot how to file a sentencing memo under seal.

      Reply

      • shg
        January 4, 2011 @ 1:44 pm

        Are you thinking kid lawyer, clerk, secretary, that sort of thing? It strikes me as impossible to believe that a layer experienced in federal defense would make such a deadly mistake.

      • Mark Bennett
        January 4, 2011 @ 1:46 pm

        Yes. That’s my guess.

      • shg
        January 4, 2011 @ 1:56 pm

        If so, it’s another thing to add to the list of obvious but critical responsibilities of criminal defense lawyers, to make certain that no one on their staff makes a silly little mistake (oops, sorry) that just happens to lead to the client’s death.

  2. Rick Horowitz
    January 4, 2011 @ 1:36 pm

    I should not have read this right after extricating myself from the place I went to write my own article a moment ago. This is just too painful to consider.

    More than once I’ve quoted Vincent Hallinan (1896-1992), who said, “Lawyers make a good living off the misery of others….”

    We must be ever vigilant that we do not increase that misery.

    Reply

  3. Anna Durbin
    January 4, 2011 @ 1:57 pm

    Ugh and a half! I don’t know what your disciplinary rules are in Texas, but if it happened in PA, I would be looking at my rules to see if this is something I would have to report to the Bar Disciplinary Committee or the District Court Disciplinary Committee. I do not like jumping on other lawyers, but when a client’s life is at stake? That lawyer should be asking US Attorney to ask BOP to put client and fam in WITSEC in prison and out.

    Reply

    • Mark Bennett
      January 4, 2011 @ 4:44 pm

      Suppose—hypothetically—that the lawyer was puffing the client’s cooperation, and that in fact the client had been unwilling to provide any useful information against the Zetas.

      The client would not be eligible for WITSEC, but he and his family would still be eligible for greenlighting.

      Reply

  4. Mike Trent
    January 4, 2011 @ 10:14 pm

    Mark, I’m glad you chose to write on this. I have not done any federal work yet, but I had to cringe when I read the article. And, while the ultimate blame lies with the lawyer, I don’t let the Chronicle off as easily. How can anyone with a lick of common sense not realize the danger such publicity creates for this poor man and his family? Seriously! There is such a thing as responsible journalism. Can anyone truly be that stupid? –Guess that’s a dumb question. OF COURSE THEY CAN!!!

    Reply

    • shg
      January 5, 2011 @ 3:00 pm

      Aside from the fact that his lawyer blew it and the Chron printed it, where did you get the impression that th defendant/rat is properly described as “this poor man?” He doesn’t deserve to die for what he did, but he’s not exactly sympathetic otherwise.

      Reply

  5. lewis kennedy
    January 5, 2011 @ 3:54 pm

    This type of documentation should never be filed electronically (or have to be) – there’s simply too much scope for mishap.

    What’s wrong with the old-school approach – a hard copy of the letter from the cop confirming your client’s credentials – in a sealed brown envelope – hand-delivered by the lawyer to the sentencing judge’s clerk – and for the judge’s eyes only?

    There shouldn’t even be any electronic record retained in the lawyer’s own office – or mention on file. Nor should these matters be delegated. A ‘need to know’ basis only.

    Reply

  6. Max Kennerly
    January 5, 2011 @ 8:04 pm

    An appalling mistake, though I partly blame ECF. I have zero experience filing criminal matters, but on the civil side I’m routinely required by ECF to mislabel documents or to violate particular judges’ policies.

    I don’t see why ECF can’t annoy people with something like “Does this document indicate cooperation with the government?” etc., etc. Some of our civil prompts stop you and make you check a box for “Have you redacted?”

    Why not add: “Might this filing get your client killed?”

    Reply

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