For the Defense - Vol. 4, Issue 2 - 45

About the Authors

this very delicate and risk prone component of a
case. If you are fortunate enough to practice with
a colleague or trusted partner, identify who carries
the responsibility to oversee public relations and
to manage other professionals involved in the
representation-this will allow for an efficient
and streamlined approach to the representation
overall, while also allowing lead trial counsel to
prepare for the bulk of the trial work without
distraction by these tangential, but critical, parts
of the representation.
_____
These recommendations may not fit every highprofile case or every client, but boiled down to
their essentials, they apply universally to all client
representations: ethics, trust, control, caution,
preparation, preparation, and preparation. It
is true that there is never a dull moment in the
representation of a high-profile client in a criminal
case, but do not let the excitement, pressure
or bright lights distract you from these simple,
foundational elements of your practice.
NOTES:
Bandes, Susan; Loyalty to One's Convictions: The Prosecutor and
Tunnel Vision, 49 Howard L.J. 475, 479 2005-2006.
2
See Bandes, supra n.1, at 493 ("Loyalties, cognitive biases and
emotional commitments are here to stay; they are part and
parcel of the human condition.")
3
See Bandes, supra n.1, 484.
4
Often, this latent issue is more dangerous than overt misconduct
on the part of the prosecution because it can be so heavily
embedded and veiled as "practice-as-usual."
5
See, e.g. Kotteakos v. United States, 328 U.S. 750 (1948); United
States v. Lee, 359 F.3d 194, 207 (3d Cir. 2004).
6
See United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2004)("The
indictment either states an offense or it doesn't."); see also
United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002).
7
Before raising this issue in pre-trial negotiations, carefully
consider that approach and whether, given the circumstances
of the case (i.e., likelihood of declination or mutually acceptable
resolution), it makes more sense to raise for the first time
in legal argument. Further, be prepared to object in limine
and, as necessary, live time during witness testimony, to the
admission of hearsay on this basis of a coconspirator statement
in furtherance of a conspiracy before the prosecution has
adequately established that a conspiracy existed between the
declarant and the non-offering party and that the statement was
made during and in furtherance of that conspiracy (be careful
where there are multiple conspiracies charged). United States v.
Bourjaily, 483 U.S. 171, 175 (1987).
1

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William J. Winning
concentrates his practice
in the representation
of individuals and
corporations under
investigation for or
charged with violations
of federal and state
criminal law and has
tried numerous cases to
verdict in both federal and state courts. Bill also
has significant experience presenting clients
in a variety of regulatory and government
compliance matters. He is a member of Cozen
O'Connor's Criminal Defense & Internal
Investigations Practice.

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Megan Scheib a member
of Cozen O'Connor's
Criminal Defense &
Internal Investigations
Practice, passionately
fights for her client's
rights and liberties by
providing reliable guidance
and representation in
all matters involving
both civil and criminal law, whether her client
is a civil litigant, a witness or a target of an
investigation, or a defendant charged with
criminal offense. Megan has also counseled
victims of criminal offenses on how to navigate
the legal system and exercise their rights
under the law. She has successfully represented
individuals and companies under scrutiny for
a wide range or criminal activity including
multi-million dollar frauds, high profile public
corruption, Title 21 violations, counterfeiting,
identity theft, and money laundering. Megan
is also committed to defending the rights of
the indigent and regularly represents criminal
defendants through pro bono referrals or court
appointments.

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