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UNITED STATES v. FLANAGAN
December 2, 1981
UNITED STATES of America
Robert FLANAGAN, James dKeweshan, Sidney Landis, Thomas McNamee
The opinion of the court was delivered by: LUONGO
Presently before me is the Government's motion to prohibit the law firm of Sprague and Rubenstone from representing all four defendants in this criminal case. The defendants, Robert Flanagan, James Keweshan, Sidney Landis and Thomas McNamee, all police officers employed by the Philadelphia Police Department, are each charged in a single indictment with conspiracy to violate the civil rights of citizens. 18 U.S.C. § 241. The indictment also charges substantive violations of citizens' civil rights, see 18 U.S.C. § 242, by Flanagan (Counts Two through Thirteen), McNamee (Counts Two through Thirteen), Landis (Counts Four through Thirteen), and Keweshan (Counts Two through Seven, and Eleven through Thirteen).
The defendants are members of a so-called "grandpop" squad, a decoy squad engaged in undercover operations to ferret out street crime. Typically, defendant Flanagan would pose as the decoy, with defendants Keweshan, Landis and McNamee as his backup. After being accosted and robbed by an assailant, Flanagan would signal the backup team by yelling: "Give me back my money." Keweshan, Landis and McNamee would then close in and make the arrest. The Government charges that over a period of about 17 months the defendants conspired to violate citizens' civil rights by arresting persons, under color of law, without probable cause, and that varying combinations of the defendants did in fact falsely arrest and/or physically abuse eight persons in violation of their civil rights.
Among the areas which Mr. Thall stated had been discussed with each defendant were the following:
(1) Opening and closing statements-Unlike separate counsel, joint counsel would not be able to set one defendant apart from another.
(2) Sentencing-In the event that more than one defendant were convicted, joint counsel could not argue that one defendant was more or less culpable than another.
(3) Spillovers-Possibility that jury might infer from joint representation that if one defendant is found guilty, the others must be also.
(4) Possible grants of immunity-Each defendant was told that the Government could offer one of the defendants immunity on the condition that he testify against the others, thus interfering with a joint trial strategy.
(5) Nature of the evidence-It was explained to each defendant that the Government might introduce more evidence tending to implicate defendant Flanagan, and that as a result:
(a) the jury might infer that the others were also guilty because of joint representation,
(b) defense efforts might be more concentrated toward the defense of Flanagan.
(6) Right to testify-If one defendant exercised his right to testify on his own behalf and one or more of the others did not, the jury, from the fact of joint representation alone, might infer guilt on the part of those not testifying. Also, on cross-examination, the defendant who exercised his right to testify could be questioned as to his knowledge of activities involving the other defendants.
(7) Character and reputation testimony-Each was informed that if the defense offered character or reputation testimony on behalf of some but not all defendants, the jury might infer from the fact of joint representation that the character or reputation of the other defendants is undesirable.
(8) Right to separate counsel-Each defendant was apprised of his right to separate counsel, and that, if he could not afford counsel, the ...
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