reversible error to allow an informant to be indicted and profess guilt before a jury. The government bore a heavy burden of showing the error to be harmless. 121 The court in Rispo declined to apply the harmless error rule because the persuasiveness of the fraud worked on the court. The more appropriate approach would have been to consider the guilty plea error and require the government to show that it was The meetings with his co-defendant's attorney at which the trial was discussed. He did not go to trial with the defendant, however, and he instead testified against the defendant. evidence established that the informant did not divulge any defense strategy to his supervisor or to the prosecution. The Fourth Circuit held that even without a showing of prejudice, the defendant's Due Process and Sixth Amendment rights 121 122 123 United States v. Lusterinto, 450 F. 2d 572 (2d Cir. 1971). 20 Crim, L. Rptr. 3059 (Feb. 22, 1977). 528 F. 2d 483 (4th Cir. 1975), rev'd, 20 Crim. L. Rptr. had been violated. The court upheld as valid a civil rights claim under 42 U.S.C. §1983 against both the informant and his supervisor. The Supreme Court reversed. The Court held that there is not a per se rule forbidding an undercover agent to meet with a defendant's counsel. In the event that an undercover agent does meet with a defendant's counsel, the information gained must be communicated to the prosecution in order for there to be an infringement of the defendant's Sixth Amendment rights. The Court also held that there is not a constitutional right to discovery in criminal cases. 43 42-793 O - 79 - 28 EXCLUSION OF LAWYERS FROM EXECUTIVE SESSION PROCEEDINGS The House Select Committee on Assassinations has, since it's inception, respected the right of witnesses to the assistance of counsel during Congressional hearings. (See Attachment A for relevant portions of Rules of the Select Committee and the House of Representatives.) Indeed, the Committee is the first Committee of Congress that will secure counsel for a witness that is financially or otherwise unable to secure his or her own counsel. See Committee Rule 3.7. The District Bar Association has already been contacted several times to secure counsel for witnesses pursuant to this Rule. At the same time, the Committee has consistently recognized its responsibility to insure that attorneys representing witnesses be free from conflicts of interest that could in any manner inhibit the ability of that attorney to provide sound and independent assistance for his or her client. Moreover, should such a conflict of interest or other breach of professional ethics by an attorney occur before the Committee, the Chairman has the duty to punish that breach by excluding the attorney from continued participation in the proceedings. (See Attachment A for relevant portions of the Rules of the Select Committee and the House of Representatives.) The Committee has, for example, established a policy dealing with both the Federal Bureau of Investigations and the United States Secret Service that provides that attorneys representing agency witnesses will come from private practice, rather than from the agencies themselves; this insures that the advice of the attorney will not be affected, or inhibited, either in appearance or in fact, by his or her personal loyalty to the agency. An even more significant form of conflict arises, however, in the situation of "multiple representation", i.e., the representation by one attorney of more than one witness in cases where the witnesses possess conflicting interests, for example, where the witness is being asked to testify about the other's conduct. The danger inherent in this situation stems from the inability of the attorney to provide sound advice to one client because of the conflicting interests of another client. These dangers have been recognized by a variety of authorities, including the United States Supreme Court in its recent (April 3, 1978) decision of Holloway vs. Arkansas, (See Attachment B for relevant portions of this decision), and the American Bar Association in its Code of Professional Responsibility, (See Attachment C for relevant portions of the ABA Code). In essence, the ABA's Code of Professional Responsibility mandates that an attorney avoid situations of potential conflict, and allows a client to consent to multiple representation by an attorney only "if it is obvious that (the attorney) can adequately represent the interests of each (client)." Equally noteworthy are remarks contained in the Final Report of the Watergate Special Prosecution Force concerning the general problem of multiple representation. This report recommended that in situations of potential conflict, involving an attorney, the Court . . . (or other appropriate agency) intervene . . by making a factual determination as to the existence of the conflict of interest and then requiring the witness to retain, or appointing for him, counsel who has no such conflict. Although there will obviously be great reluctance to interfere with the individual's freedom to select his own attorney, the suggested course is the only one that can preserve the equally valid right of the Government to his full and truthful testimony. (Emphasis has been added to the cited portion. See Attachment D for a more complete excerpt from the final Report of the Watergate Special Prosecution Force.) |