<<Yawn>> Go fuck yourself, Dipshit, and
enjoy those SEVENTY-ONE FELONY CHARGES being rammed his ass, Jagoff.
Thursday, July 06, 2023 at 5:27:23p PDT
https://www.dailykos.com/stories/2023/7/6/2179684/-Trump-Nauta-Joint-Defense-problems-ahead#comments
Justice for all
About 96-97 percent of federal cases end up with plea bargains and do not go to trial. This is driven in part by the policy of federal prosecutors to decline to seek indictment until they feel they have a solid case, in part by the perceived favorable treatment of those who plea guilty compared to those who go to trial and do not “accept their guilt”, in part by the costs of defense, in part by the heavy workloads of appointed (free) counsel for some, and in part by the availability of very sweet treatment for those who testify against their co-defendants. If you are facing an open and shut case against you, there is often not a lot to be gained by demanding the jury trial to which you are entitled.
When multiple people are defending their participation in crimes they were all involved in, things can get very complicated. They must play a chess game both against the prosecution and against each other.
This involves important legal issues that go well beyond balancing self-interest and cooperation. Further, the complexity of the issues may require an experienced judge to help all involved navigate the problems. I have seen some comments that Judge Cannon in the Trump documents case has actually been a fairly competent judge running the few trials she has run, but given her history it is fair to ask whether she has the experience and wisdom to handle the conflicts raised by a joint defense.
One big problem raised by joint defenses is that it carves out an awkward exception to the attorney-client privilege. Except when an attorney is actually involved in a crime (as in Trump’s case) a client generally can speak freely with their lawyer without fear of having those discussions made public. That allows a lawyer to craft an intelligent defense and to avoid looking foolish at trial if unexpected information comes out. (Though clients may share damaging information with their lawyers without fear of disclosure, there are limitations that arise. A lawyer is not supposed to engage in “fraud upon the court” by making or facilitating false statements. For example, if a lawyer defending a case knows his client is planning to lie, he may refuse to present the client’s testimony, and instead tell the court the client wants to make a statement.)
Joint defenses are common in both civil and criminal cases. In civil cases they can cause problems when one defendant (or plaintiff) wants to settle and others do not, but that can be addressed by peeling off that client and letting her get her own lawyer to negotiate a settlement. Since testimony from any party can be compelled in a civil case, the effect of this sort of defection is limited.
On the other hand, in a criminal case testimony cannot be compelled, so co-defendants will usually not be expected to testify at all, either for themselves or against each other. But when one defendant settles by pleading guilty or reaching a cooperation agreement, the dynamics change radically. For this reason, while co-defendants often cooperate with each other in criminal cases, they have to be very cautious in doing so. While it is common for multiple civil litigants to hire a single lawyer, courts typically require criminal defendants to each engage their own lawyers. (When defendants cannot afford counsel, a public defender will often be appointed for the “worst” defendant, and the others will have appointed counsel hired through other means.)
In the Trump case, the assumption is that Trump is dominating the defense, possibly paying for Nauta’s lawyers, and certainly trying to keep Nauta from testifying.
Two things will be going on with Nauta’s lawyers. On one hand, they will, or should be, giving Nauta a hard look at the facts against him, the possible imprisonment he faces, and the possibility of cutting a deal to avoid that. They have an ethical duty to be sure he understands the corner he is in. On the other hand, they will also seek to work with Trump’s team to find a joint defense where, if they all go to trial, Nauta could benefit from coordinating his defense with Trumps.
The usual way of dealing with this is to enter into a “JDA”, or Joint Defense Agreement. Such an agreement could be just a handshake, but is best reduced to writing and signed by attorney’s and clients.
This is where the judge may come into the picture as well. Her duty is to be sure the trial is fair as to each party. She needs assurance from Nauta, or his attorneys, that he has made an informed choice to run the risks of trial if he does not try to plea or reach a cooperation agreement to testify. Given her past rulings, we can ask whether she is impartial enough to do this. It may be more likely for Nauta to be convicted than Trump, and Nauta might well get harsher punishment than Trump; at the same time, it seems likely that the prosecution would be willing to advocate strongly for leniency if Nauta were to testify against Trump. A judge seeking fairness to each defendant would want to be sure Nauta understood the situation fully.
There are complex issues concerning communications when a JDA is in place. The central idea is that, if Jack has lawyer A and Jill has lawyer B, in normal circumstance Jack can talk freely to A and Jill to B, but that’s all. If they enter in to a JDA, however, Jack can talk to A and B, and to Jill in the company of their lawyers (and likewise Jill can talk to A and B and Jack in their presence), and the attorney-client privilege is preserved. There are pitfalls, however, if the relationship breaks up, or even if Jack and Jill speak to each other not in the presence of their lawyers. A JDA has to be carefully crafted to deal with all possible developments.
For a single example, in the California case
U.S. v. Stepney, the court found that it had the power on its own volition to ensure justice was served as to all parties to a JDA agreement, and sua sponte required the parties for joint defendants to do as follows:
- All JDAs had to be in writing, signed by defendants and their attorneys, and submitted to the court for review prior to going into effect.
- Each JDA submitted had to explicitly state that it does not create an attorney-client relationship between an attorney and any defendant other than the client of that attorney. Additionally, no JDA could purport to create a duty of loyalty.
- Each JDA had to contain provisions conditionally waiving confidentiality by providing that a signatory attorney cross-examining any defendant who testifies at any proceeding whether under a grant of immunity or otherwise, may use any material or other information contributed by such client during the joint defense.
- Each JDA had to explicitly allow withdrawal upon notice to the other defendants.
Clearly, this presents major challenges for both the court (Cannon) and for Nauta’s attorneys. We can be sure Trump wants to tell Nauta and his attorneys exactly what to do. Nauta’s attorneys have ethical obligations to resist that, and to advise Nauta as to what course serves his interests the best.
In the end, it rests in Cannon’s hands to ensure this is done. Does she have what it takes to make sure Nauta’s attorneys are doing their best for him, and not Trump?
