U.S. v. Springs*

You have been asked to represent David Springs in a prosecution for income tax evasion. Mr. Springs has lived in your community for some time without any visible means of support. He is rumored to have dealt in illicit drugs at one time.

The government's prosecution is based on testimony of Larry and Winnie Parks who briefly ran a local restaurant and were also rumored to have dealt in drugs. Last fall the Parks deposited some $500,000 in cash in their bank account. The large cash deposit was reported by the bank and DEA agents questioned the Parks. The Parks told the agents that the money came from David Springs as an investment in their restaurant.

Springs' regular lawyer asks you to enter the case once initial efforts to dispose of the prosecution have failed. You learn these background details from your referring counsel.

When you meet with Springs, before you ask him for the facts you tell him,

"If you did not give the Parks the money or if someone else gave you the money, then the government has no case. So far as I can see at this point, those are the only factual defenses you have."

You also tell him that the government will not have to show where he got the money, but only that he has it and has not paid any tax on it. He asks what will happen if he testifies that he was not involved with drugs. You tell him that the government will be bound by his answers.

Springs admits to you have he has dealt in drugs and that he did give $500,000 to the Parks. He maintains that he has gone straight and does not deal in drugs anymore. You advise him that you will not be able to put him on the stand, but that you can "put the government to its proof."

You interview several character witnesses proposed by Spring in preparation for trial. One of them, a minister, tells you that he has known David Springs for years and that "David is definitely not the kind of person who would cheat on his income tax." You prepare him to testify.

You also interview Parks' accountant who tells you that the Parks have never told him about any investment by David Springs in the restaurant, never issued any stock in the restaurant to Springs, never told him the $500,000 came from Springs but told him instead that the money came "from Mexico".

You send investigators out to try to get information and witnesses on the Parks' cheating habits, drug-dealing, potential sources of money, and reputation for lying and cheating.

You meet with the prosecuting attorney to discuss a plea bargain. You tell her that your witnesses will destroy the Parks' credibility.

Does anything you have done raise any problem of professional responsibility?

Conventional legal ethics analysis often focuses on the subjective state of mind of the lawyer or witness as determinative of the ethical question. If the witness believes that she is telling the truth, a lawyer may call the witness and present her testimony even if the lawyer “knows” that the witness and her testimony is mistaken. By the same token the lawyer may attempt to discredit witness testimony known to the lawyer to be factually accurate and even argue from actual facts and circumstances that the witness should not be believed. These resolutions are justified by requirements of the adversary system. How would trials and the function of the trial lawyer be affected if the lawyer were prohibited from presenting even honest testimony known by the lawyer to be mistaken and from arguing the falsity of testimony known by the lawyer to be factually true? Would there really be a big change? Or would it generally be a question of how well the lawyer “knew”....?