Under normal circumstances, cases have witnesses and witnesses need to be interviewed.  After all, if you don’t speak with the witnesses, you won’t know what they have to say, or whether they are good for you or bad for you.  And regardless of which way they go, you want their testimony locked in so that you can prepare for it.

Sounds simple, but two Baltimore lawyers were forced to take the witness stand to defend their methods after being accused of trying to obstruct, intimidate or manipulate witnesses, according to the Baltimore Sun.

Yesterday, a judge ruled that a jury can hear testimony from a prosecution witness who said defense attorney Leslie Stein urged him to change his story, telling him that “people don’t last long when they snitch.”

Baltimore Circuit Judge Timothy Doory said he didn’t necessarily believe the witness, Christopher Meadows, over the 35-year veteran attorney, who denied the allegations. But the judge thought “there was enough there” that the jury in the murder trial of Stein’s client, Bryant Williams, 24, should be allowed to decide who’s telling the truth.

One of the problems, among many, is that the witness is often a team player, but playing for the other team.  When the defense tries to speak with the witness, they resist.  It often requires a little persuasion to convince the witness that he’s not being disloyal to talk to the other side.  It’s not unusual for the witness to have been told that he is under orders not to speak with the defense. 

But there’s a good chance the a witness, who has already dealt with the police and prosecution, has picked his side and now wants to be a contributing player.  It’s no longer a question of whether the witness will speak with the defense, but what the witness will do within 37 seconds after the interview is over. 

As happened to Leslie Stein in Baltimore, the witness can make allegations of witness tampering and intimidation, accusing the lawyer of trying to suborn perjury.  This can turn into a he said-she said scenario, and guess which side the prosecution will take.  The judge, caught between a rock and a hard place, will usually feel constrained to treat the witness’ claims seriously, and the lawyer will find himself in the last place he wants to be.

The means to avoid this situation are readily available, provided the defense has the funding necessary to use them.  There are two simple steps required:  First, the defense lawyer should never go out to see witnesses alone, but always in the company of an investigator who will serve as a witness to what transpired.  Second, all communications with witnesses should be surreptitiously recorded, from telephone calls to face-to-face interviews. 

Not only will these two steps provide evidence to be used should the witness change his statement when he’s on the stand for impeachment, but it will provide hard evidence to show that there was no improper conduct on the defense’s part in its investigation of the witness.

Easy though this may appear, it has problems for the private practitioner.  While public defenders often have their own investigators available, and well-funded defendants can afford to retain the services of competent investigators, there are a wide swathe of cases where there’s just not enough money to pay for the panoply of ancillary services that are really needed to provide an effective (and safe) defense. 

There’s no easy answer for this problem.  Investigators have children who like to eat too, and they expect to be paid for their services.  When lawyers hit the streets on their own, they can still try to record their own interviews, provided they have the equipment that is needed, but they still won’t have a witness to testify as to what transpired.  So, they’re back on the stand themselves, perhaps with better support than they would have without a recording. 

But few lawyers have the equipment needed to do the job adequately.  Also, few lawyers have the skills to handle an interview with an unwilling witness.  This can be a bit dicey, and may require some very sensitive handling.  If there’s a problem, the lawyer is still the focus and left wide open to criticism and potential prosecution.

The second lawyer in the Baltimore Sun story raises an entirely different problem.

In another case, prominent defense attorney Ivan Bates took the stand Tuesday in the robbery trial of Charles Robinson, 31, one of his former clients. Bates was accused of negotiating a contract in which Robinson would pay a victim $690 in exchange for not pursuing civil or criminal “remedies.”

Buying off the victim is one of the riskiest, and most ethically problematic things a lawyer can do.  To the defendant, it seems like such a natural way out of his problems.  To the victim, it often seems like the perfect solution, or the most heinously cynical attempt to buy the defendant’s way out of prison.  To the lawyer, it is essentially impossible to “resolve” any potential civil claims stemming from a crime without it appearing (and, in fact, being) an effort to buy testimony or lack of cooperation.

Whether the attempt to “settle” starts with the defendant or the victim, who may well reach out to claim damages and offer, in exchange for money, to “drop” the case, I’ve never found a way to accomplish this that doesn’t trample ethical proscriptions.

Bates explained his reasoning to the Sun:

In an interview yesterday, Bates denied any wrongdoing. “That contract had nothing to do with Charles Robinson,” he said. He asserted it was to prevent a civil action.

“I told the victim he would still have to come to court and he would have to tell the truth,” Bates said. “Honest to God that’s what I said.”

This just doesn’t pass the smell test for me.  Not even close.  For those who might be inclined to give it a go, be prepared to take your lumps regardless of whether you’re successful in negotiating a deal or not.  When the victim calls the prosecutor to say he’s “dropping the case,” something that is not necessarily within his power to begin with, the prosecutor or arresting officer may well demand an explanation upon pain of the prosecution turning its attention on the victim for some amorphous wrongdoing.  The victim is going to spill his guts immediately, and then the focus shifts to the lawyer. 

Buying peace is a prescription for disaster.  No matter how sensitively it’s phrased, or how sincere the motive, or how many “Honest to God’s” the lawyer tosses into his testimony, the story emits an unpleasant odor.  Be prepared to take your lumps.

Update:  This is belated update (8/13/09), but one that needs to be done.  Ivan Bates has filed a $13 million libel suit against the Baltimore Sun for this story, claiming that the article mischaracterized what happened, and falsely suggested wrongdoing on his part.  While the Baltimore Sun has pulled the online version of the article, it otherwise stands by its story and has not issued a retraction.

If the Sun story falsely characterized Bates’ conduct and testimony as unethical and improper, than I hope he nails the paper to the wall.  As strongly as I feel about ethical conduct, incompetent or false reporting is no better, and a lawyer’s good name is all he has.  Whether this case ever makes it to trial or achieves a public outcome has yet to be seen, but at least you should know that Ivan Bates has picked up the gauntlet.