Pamela Metzger: “Beyond the bright line: A contemporary right-to-counsel doctrine.” Northwestern University Law Review. Summer 2003 – “Unlike other plea agreements, a cooperation agreement only requires the prosecution to make vague and largely unenforceable promises about sentence outcomes. The defendant promises to provide complete and truthful information. The defendant also agrees to disclose all past criminal activities. Further, the defendant agrees to testify in grand jury or trial proceedings and, when asked, to participate in monitored telephone conversations or engage in other surveillance-type activities, such as wearing a wire. The agreement also requires the defendant to agree to postpone his sentence until his cooperation is deemed complete.
In exchange, the government makes only one promise: if the defendant provides substantial assistance in the investigation and prosecution of another individual, the prosecution will make a motion to the sentencing judge for a reduction of the defendant’s sentence. Several caveats, and even an explicit threat, accompany this promise. First and foremost, the government is to be the sole judge of whether the defendant has truthfully and completely cooperated. The decision as to whether the cooperation rises to the level of substantial assistance will be left to the sole discretion of the prosecutor’s office. Often a cooperation agreement does not specify the extent of the departure the government will request. And, even if it did, that request would not be binding upon the sentencing court. Finally, if the defendant fails to perform under the terms of the agreement, the prosecutor’s office retains the right to use the defendant’s statements against him at a subsequent prosecution for false statements.
Ultimately, the cooperation agreement is a gamble, in which the defendant assumes the risk. The parties expect the defendant’s sentence to be tempered by the court’s eventual ruling. But, if the cooperation comes to naught, or if the government deems the defendant’s cooperation insubstantial, a defendant has no right to withdraw his plea, and he suffers the full penalties prescribed by law. The prosecutor’s exclusive determination of whether the defendant has provided substantial assistance is unassailable unless the defendant can show that the government withheld the promised motion for unconstitutional reasons.”
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