A federal prosecutor indicts your client for two death-penalty-eligible murders. The line prosecutor says that if your client allocutes to the two murders, his office will take “death” off the table. You tell your client the “good news” and promptly communicate your client’s enthusiastic acceptance to the prosecutor. As an experienced attorney, you know that the prosecutor’s offer specifically required Main Justice approval given the still-pending death-eligible charges.1 In fact, the prosecutor mentioned it. Still, you saw it as a done-deal and, unprofessionally, neglected to tell the client that one caveat. It was your absolute duty to tell him, you failed miserably and maybe created an ineffective assistance of counsel claim—but your conduct is not the subject of this article.
The real problem, however, arises if/when Main Justice overrules and directs the U.S. Attorney to withdraw the “no-death” offer—as it did a number of times during the Bush administration.2 In that instance, the prosecutor’s withdrawal of the offer is bulletproof because he told you he needed Main Justice approval. But what if the prosecutor never told you he required approval; your client accepted, relying on what he believed was the “deal”; and the prosecutor then reneged?
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