                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 11-1002, 11-1012

U NITED S TATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

C ORVET T. W ILLIAMS and B RIAN D. A USTIN,

                                             Defendants-Appellants.


             Appeals from the United States District Court
        for the Northern District of Illinois, Western Division.
         Nos. 06 CR 50055-1, -2—Frederick J. Kapala, Judge.



    A RGUED A PRIL 10, 2012—D ECIDED S EPTEMBER 11, 2012




  Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
  P OSNER, Circuit Judge. Corvet Williams and Brian Austin
were tried together for armed bank robbery and use of
a firearm in a crime of violence, 18 U.S.C. §§ 2113(a), (d),
924(c)(1)(A), and were convicted by a jury. Their con-
victions were reversed, 576 F.3d 385, on a ground
unrelated to the present appeals. They were retried, again
convicted by a jury, and each sentenced to 684 months
2                                   Nos. 11-1002, 11-1012

in prison. They appeal, challenging both their convictions
and their sentences.
   There were two robberies, two weeks apart, pretty
obviously committed by the same two persons—so similar
were the modus operandi of the robbers on the two
occasions: two black men, one short and one tall, both
brandishing pistols and wearing black gloves plus masks
that covered the head completely except for eyes and
mouth, with the shorter of the two men jumping over
the teller counter to get the money while the taller
pointed a silver-colored semi-automatic handgun held
in his left hand at bank employees and customers, whom
he had ordered to lie on the floor. And in each robbery
the robbers had driven a stolen vehicle to the bank, left
it with its motor running while they robbed the bank,
and after the robbery driven away in another stolen
vehicle, parked nearby.
  Austin challenges his conviction on the ground that
the evidence was insufficient to convict him beyond a
reasonable doubt. That is the only challenge mounted
by his lawyer. We permitted Austin to file a pro se brief
complaining about the adequacy of his lawyer’s repre-
sentation of him at the second trial, but that complaint
has insufficient merit to warrant our extending this
opinion to discuss it.
   The principal witness against Austin (as against Wil-
liams) was Edward Walker, who testified that he’d been
the getaway driver for the second robbery and so knew
who the robbers were—and they were, he testified, his
old friends Austin and Williams. He also testified that
Nos. 11-1002, 11-1012                                  3

earlier those two had explained to him that they would
be using two stolen cars in the robbery and Austin had
told him that he had committed a previous robbery
with Williams, also using two stolen vehicles. Another
witness—Austin’s former girlfriend, with whom he’d
broken up a couple of months before the robber-
ies—testified that she had recognized him in the sur-
veillance photos of the second robbery despite the mask.
  Austin told the police when arrested that he had an
ironclad alibi for the second robbery—he had been
having a haircut while the bank was being robbed. But
testimony by the barber, corroborated by phone
records, placed the haircut an hour after the robbery.
Another former girlfriend of Austin—his girlfriend at the
time of the robberies—testified that Williams and Austin
had been together in her apartment the morning of the
robbery, before it occurred, and had left together.
  Austin denied having participated in either robbery,
but also testified that his hair had been cut at noon the
day of the second robbery—which was 80 minutes
after the robbery—and admitted that he’d been in his
girlfriend’s apartment with Walker and Williams that
morning.
  He argues that the girlfriend who claimed to have
recognized him in the surveillance photos could not
have done so because of the mask, that she had
testified against him out of spite, and furthermore that
she already knew he was a suspect when she identified
him from the photo. And he argues that Walker’s testi-
mony should be disbelieved because Walker had been
4                                   Nos. 11-1002, 11-1012

given immunity from prosecution in exchange for his
testimony and therefore incurred no cost by implicating
himself along with the defendants.
  There was no evidence that the ex-girlfriend had
testified out of spite—on the contrary, the evidence was
that she had testified reluctantly. (No explanation was
offered for why they’d broken up.) Although the mask
covered Austin’s head almost completely, her testimony
that she recognized him from the shape of his body
and how he moved was not implausible, as she had
known him for 18 years. (Had she not known him so
well, there might be grave doubts about the reliability
of her face-obscured identification. See A. Mike Burton
et al., “Face Recognition in Poor-Quality Video: Evidence
from Security Surveillance,” 10 Psychological Science
243, 245-48 (1999).) The identification was not sugges-
tive, because she was shown just the surveillance photos
and asked only whether she could identify the masked
man; she was not told that the police thought it was
Austin, and he had not yet been arrested. It’s true that
the police had searched her apartment the day of the
second robbery. But her roommate was Williams’s girl-
friend at the time, and Williams had stayed in the apart-
ment the night before, and we have no reason to think
that Austin’s ex-girlfriend connected the search with
Austin rather than with Williams.
  Walker’s testimony against the defendants was self-
serving, of course, but it was corroborated. The defen-
dants’ argument that it was contradicted by neutral
witnesses is incorrect; there were some discrepancies in
Nos. 11-1002, 11-1012                                    5

witnesses’ testimony as there almost always are, but
they were minor.
   Austin did not make a wise choice in deciding to
testify. He made crucial admissions, which when added
to the ex-girlfriend’s testimony, Walker’s testimony, the
testimony of Williams’s girlfriend, and the barber’s testi-
mony entitled a reasonable jury to conclude that he
was guilty beyond a reasonable doubt. And it is the
cumulative probability of guilt created by all the evi-
dence, rather than the probability of guilt created by a
single piece of evidence, that is the touchstone in
deciding whether a reasonable jury could find the de-
fendant guilty beyond a reasonable doubt. United States
v. Duarte, 950 F.2d 1255, 1260 (7th Cir. 1991); United
States v. Carson, 702 F.2d 351, 362 (2d Cir. 1983). Suppose
the prosecution submits three items of evidence of the
defendant’s guilt (and the defendant submits no evi-
dence of his innocence), and the probability that item 1
is spurious is 10 percent, the probability that item 2 is
spurious is also 10 percent, and likewise item 3. The
probability that all three are spurious (assuming that
the probabilities are independent—that is, that the proba-
bility that one piece of evidence is spurious does not
affect the probability that another is), and therefore that
the defendant should be acquitted, is only one in a thou-
sand (.1 x .1 x .1). There is an analogy to calculating the
risk of dying of some disease. Suppose the probability
of finding oneself in a locale where the disease is com-
mon is 10 percent, the probability of catching the disease
if one is in that locale is also 10 percent, and likewise
the probability of dying if one catches it. The probability
6                                     Nos. 11-1002, 11-1012

that one will die from the disease is again only one in
a thousand. So the fact that there were infirmities in all
the items of evidence against Austin does not indicate
that the probability of his guilt fell short of the required
threshold, which is proof beyond a reasonable doubt,
implying a very high probability of guilt, though there
is no agreement on what “very high probability” means in
percentage terms in this context.
  If the evidence against Austin was adequate, as we
have just seen that it was, the evidence against Williams
was overwhelming. The police stopped a vehicle a few
hours after the second robbery. In it were Williams and
his girlfriend. The police found bait bills from the
robbed bank in the girlfriend’s purse. In addition,
Williams was wearing muddy shoes and their tread
matched footwear impressions left by one of the bank
robbers; also the shoes were stained with a dye that was
the color of the jumpsuit worn by the taller of the two
robbers—Williams. And he admitted having testified
in a previous proceeding to owning a chrome (and thus
silver-colored) .25 caliber semi-automatic handgun, and
such a gun was seized by police from the apartment of
Williams’s girlfriend, where he had stayed the night
before the robbery. Austin’s ex-girlfriend, who remember
was the roommate of Williams’s girlfriend, identified
the gun as Williams’s. There was additional evidence
of his guilt, such as Walker’s testimony.
  Williams contends, however, that the government
impermissibly bolstered its case by calling his original
lawyer as a witness. The lawyer testified that Williams
Nos. 11-1002, 11-1012                                      7

had mailed him an envelope marked “legal mail” (so
that it would not be opened by the jail) that contained
a sealed letter addressed to a cousin of Williams and a
note asking the lawyer to forward the letter to Williams’s
family to give to the cousin. The lawyer was suspicious
and read the letter. It instructed the cousin to provide
an alibi for Williams by testifying that Williams had
been involved in a marijuana deal on the day of the
robbery. Realizing that Williams was trying to obstruct
justice by asking the cousin to provide him with a false
alibi, the lawyer did not forward the letter. Instead,
with the judge’s permission the lawyer withdrew as
Williams’s counsel, turned the letter over to the gov-
ernment, and agreed at the government’s request to
testify at Williams’s trial. He testified that the letter was
a “blatant attempt to get me involved in smuggling
something out of the jail that in turn would be a
potential instrument for obstruction.” Williams, who like
Austin had decided to testify, admitted on the stand
that his aim in writing the letter had indeed been to
induce his cousin to lie for him.
  He argues that his lawyer did a terrible thing in
turning against him as he did; indeed that the lawyer
violated the Sixth Amendment right to effective
assistance of counsel; and that the impact on the jury of
the lawyer’s testimony must have been devastating.
These are separate points and we shall discuss them
separately.
  There was no violation of the lawyer-client privilege.
In asking the lawyer to forward the letter Williams was
8                                       Nos. 11-1002, 11-1012

not soliciting legal advice or providing information that
the lawyer might use in crafting Williams’s defense.
“When information is transmitted to an attorney with
the intent that the information will be transmitted to
a third party…, such information is not confidential.”
United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983).
For “an individual cannot purchase anonymity by hiring
a lawyer to deliver his money or his messages.” In re
Grand Jury Subpoena, 204 F.3d 516, 522 and n. 5 (4th Cir.
2000).
   The ethical rule applicable when the lawyer turned
against Williams was the rule of the Northern District of
Illinois that permitted a lawyer to “reveal . . . the intention
of a client to commit a crime,” N.D. Ill. L.R. 83.51.6(c)(2),
although it did not require him to do so unless “it
appear[ed] necessary to prevent the client from com-
mitting an act that would result in death or serious
bodily harm.” Id. at 6(b). Oddly, the parties do not cite
that rule, but instead the Northern District’s current
rule, adopted in 2011, which, we are surprised to
discover, is less protective of public safety. It permits
a lawyer to reveal information relating to the representa-
tion of a client only in specified circumstances, such
as “to the extent the lawyer reasonably believes [that
revelation is] necessary (1) to prevent reasonably
certain death or substantial bodily harm; (2) to prevent
the client from committing a crime or fraud that is rea-
sonably certain to result in substantial injury to the finan-
cial interests or property of another and in furtherance
of which the client has used or is using the lawyer’s
services; [or] (3) to prevent, mitigate or rectify sub-
stantial injury to the financial interests or property
Nos. 11-1002, 11-1012                                   9

of another that is reasonably certain to result or has
resulted from the client’s commission of a crime or fraud
in furtherance of which the client has used the lawyer’s
services.” ABA Model Rule of Professional Conduct
1.6(b)(1)-(3). The new Northern District rule adopts
the ABA Model Rules of Professional Conduct. N.D. Ill.
L.R. 83.50. But the current rule is not applicable to this
case. The old Northern District rule—the rule applicable
to this case—placed no limitations on a lawyer’s re-
porting the intention of his client to commit a crime.
  And more than an intention was involved. Williams
had already committed the crime of attempting to
suborn perjury by preparing the letter to his cousin and
asking the lawyer to forward it, and he intended the
further crime of actually suborning perjury. An
unfulfilled intention to commit or suborn (that is, get
someone else to commit) perjury is not a crime, but
the intention plus a significant step toward completion,
which Williams took, is a crime. And there is more than
just suborning perjury in this case, because the cousin
would have committed perjury had he agreed to
Williams’s request, as would Williams had he testified
to the false alibi. So we’re really talking about three
crimes, one completed, two intended: suborning perjury;
perjury by Williams; and perjury by the cousin. (The
lawyer would have suborned perjury too had he
delivered the note to the cousin after reading it, but
that was never in the cards.)
  The literature on the ethical duties of lawyers coun-
sels that a lawyer should attempt to dissuade his client
from illegal conduct before disclosing his client’s inten-
10                                   Nos. 11-1002, 11-1012

tions to the court or to law enforcement authorities. But
the literature phrases this as a recommendation rather
than as a flat command, frequently hedging it with qualifi-
cations such as “ordinarily” and “practicable.” See, e.g.,
Restatement (Third) of Law Governing Lawyers § 120, com-
ment g (2000); 2 Geoffrey C. Hazard & W. William
Hodes, The Law of Lawyering § 29.21 (3d ed. 2011); ABA
Model Rule 1.6, comment 14; ABA Model Rule 3.3, com-
ment 6. This makes sense in the usual case; the harm
to the client’s interests and to the attorney-client rela-
tionship from disclosure is great, and the benefit of dis-
closure in preventing criminal activity is usually small
when the crime is perjury since the lawyer can refuse
to introduce the perjured testimony. But this is not the
usual case. Had Williams’s lawyer merely refused to
forward the letter, Williams might have found a dif-
ferent means of conveying his unlawful request to his
family (maybe orally in jail to a visiting family)—perhaps
with instructions to find someone other than the cousin
to be the false alibi witness, someone the lawyer had
never heard of and therefore would have no basis for
refusing to call as a witness. Facing a possible sentence
of more than 50 years for the bank robberies and
having already attempted to suborn perjury, Williams
was unlikely to hearken to an ethics lecture by his lawyer.
  This was not a case in which a client tells the lawyer
that he would like to give testimony that the lawyer
knows is a lie, and the lawyer tells him he must not do
so and is confident the client will obey. Williams took
a substantial step toward procuring a false witness
and having embarked on that course had other means
Nos. 11-1002, 11-1012                                  11

of reaching his destination even if the lawyer prevented
the cousin from testifying. In such a case a lawyer is
allowed to exercise discretion concerning whether to
withdraw from representing the defendant and report
the defendant’s crime of attempting to suborn perjury.
  More important than what we think is that allowing
the exercise of such discretion is consistent with the
Northern District’s (old) rule of lawyer conduct, the rule
applicable to Williams’s lawyer, which authorized the
lawyer to “reveal…the intention of a client to commit a
crime.” Even ABA Model Rule of Professional Conduct
3.3(b), which the Northern District has now adopted,
states, albeit in tension with the other one of the model
rules that we quoted, that “a lawyer who represents
a client in an adjudicative proceeding and who knows
that a person intends to engage, is engaging or has
engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.” And
in Nix v. Whiteside, 475 U.S. 157, 169 (1986) (emphasis
added), the Supreme Court said that “it is universally
agreed that at a minimum the attorney’s first duty when
confronted with a proposal for perjurious testimony is
to attempt to dissuade the client from the unlawful
course of conduct.” In other words, the lawyer’s mini-
mum duty to the court—to the law—is to try to dissuade
his client from committing perjury. The maximum
would be to withdraw and testify against him. And the
Court in Nix (like the other authorities on professional
ethics on which William does or could rely) was
dealing with a case in which a crime (perjury) had merely
12                                      Nos. 11-1002, 11-1012

been proposed, rather than, as in this case, with a crime
(attempted subornation of perjury) that had already been
committed.
  That is not a trivial distinction. “In tort law, unsuccessful
attempts do not give rise to liability . . . . The criminal
law, because it aims at taking dangerous people out of
circulation before they do harm, takes a different ap-
proach. A person who demonstrates by his conduct that
he has the intention and capability of committing a
crime is punishable even if his plan was thwarted.”
United States v. Gladish, 536 F.3d 646, 648-49 (7th Cir.
2008). Williams is different from the client who merely
proposes perjury, because his substantial step towards
the crime “makes it reasonably clear that had [he] not
been interrupted or made a mistake . . . [he] would
have completed the crime.” Id.
  The Supreme Court in Bobby v. Van Hook, 130 S. Ct. 13,
17 (2009), criticized courts of appeals not only for relying
on ABA guidelines that post-dated the relevant conduct
but also for treating the guidelines “not merely as evi-
dence of what reasonably diligent attorneys would do,
but as inexorable commands. ” Lawyers enjoy a broad
discretion in responding to litigation misconduct by
their clients, and in the unusual circumstances of this
case we do not think the lawyer acted unethically.
  Even if he did, it would not follow that his testimony
was inadmissible, unless otherwise barred by the
Federal Rules of Evidence, for example because deemed
unduly prejudicial in relation to its probative value. Fed. R.
Evid. 401. Exclusionary rules, which protect the guilty,
Nos. 11-1002, 11-1012                                     13

are no longer favored. “Suppression of evidence . . . has
always been our last resort, not our first impulse.
The exclusionary rule generates substantial social costs
which sometimes include setting the guilty free and the
dangerous at large.” Hudson v. Michigan, 547 U.S. 586, 591
(2006); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 343-
50 (2006); Trammel v. United States, 445 U.S. 40, 50-51
(1980). “Only communications subject to the attorney-
client privilege cannot be disclosed under judicial com-
pulsion,” Newman v. State, 863 A.2d 321, 332 (Md.
2004)—and the privilege doesn’t extend to a client’s
asking his lawyer to help him commit a crime. See also
United States v. Zolin, 491 U.S. 554, 563 (1989); In re Grand
Jury, 475 F.3d 1299, 1305-06 (D.C. Cir. 2007).
  Rejection of an exclusionary rule does not mean
that there is no remedy for misconduct by a lawyer.
Defendant Williams—or for that matter a judge of this
court—can complain to the local bar association about
the conduct of his original lawyer. Lawyers are subject
to professional discipline up to and including
disbarment, and the threat of discipline should deter
willful violations. The reason for an exclusionary rule is
not to make the defendant whole by putting him back
in the position that he would have occupied had it
not been for the violation. Exclusionary rules exclude
improperly obtained evidence that often is highly proba-
tive of guilt. That is true in this case. And rather than
being a victim deserving a remedy, Williams is a con-
fessed attempted suborner of perjury.
 Exclusionary rules should be reserved for cases in
which there is no alternative method of deterrence. Pro-
14                                     Nos. 11-1002, 11-1012

fessional discipline is an alternative. True, one can
imagine a case in which the defendant’s former lawyer,
having retired from practice and thus no longer being
subject to professional discipline, offers to testify for the
prosecution about client confidences. But in that case,
either his testimony would be barred by attorney-client
privilege or, if not, he could be compelled to testify under
subpoena. ABA Model Rule 1.6, comment 13 (“lawyer
may be ordered to reveal information relating to the
representation of a client by a court”).
  In this case, the lawyer’s testifying to his former client’s
effort to enlist him in suborning perjury could not have
violated Williams’s constitutional right to effective assis-
tance of counsel. The lawyer was no longer Williams’s
counsel when he testified; he had withdrawn as
counsel and his right to do so is not questioned.
Williams does not accuse the lawyer who represented
him at trial (his original lawyer having withdrawn by
then) of having rendered ineffective assistance of coun-
sel. We can’t find any authority for holding that a
lawyer’s actions after withdrawing from a litigation
can give rise to a claim of ineffective assistance by a
party he formerly represented—especially since, as just
noted, a lawyer may be ordered to reveal information
relating to the representation of a client by a court. If we
ordered a new trial, the government could subpoena
the lawyer to testify again.
  And if all this is wrong and there was error in
allowing the lawyer to testify, it was harmless because the
other evidence against Williams was overwhelming.
Nos. 11-1002, 11-1012                                    15

Strickland v. Washington, 466 U.S. 668, 694 (1984). An error
in a criminal case in which the defendant is convicted
by a jury is harmless if without the error no reasonable
juror would have voted to acquit. This is such a case.
Although the eyewitness identification of Williams was
not conclusive, if only because Williams was masked,
the other evidence against him—the money, the shoes,
the gun—constituted overwhelming evidence of guilt.
Having convicted Austin on weaker though adequate
evidence in an error-free trial, how could the jury in
reason have acquitted Williams? Even when there is a
denial of the constitutional right to effective assistance
of counsel in a criminal trial, the rule of harmless error
applies. The right to effective counsel protects a
defendant from the risk of false conviction. “Without it,
though he be not guilty, he faces the danger of convic-
tion because he does not know how to establish his inno-
cence.” Gideon v. Wainwright, 372 U.S. 335, 345, (1963),
quoting Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
There is no risk that Williams was convicted falsely.
  The jury may not even have given much weight to
the lawyer’s evidence; the fact that a criminal defendant
facing a long sentence tries to get a relative to give him
a false alibi is not conclusive evidence of guilt of the
crime the defendant is being tried for—an innocent
person, fearing that he would be convicted because
the weight of the evidence was against him, might in
desperation try such a ploy. That would be criminal,
and an admitted willingness to commit another crime
(remember that Williams admitted he’d attempted to
obtain a false alibi from his cousin) could only hurt
16                                    Nos. 11-1002, 11-1012

the defendant, but not necessarily critically, and not
critically in this case in any event, because of the weight
of the other evidence against him.
  It’s true that the prosecutor said that the lawyer’s testi-
mony was “essential” to its case. It wasn’t; it was
an example of conduct by prosecutors that we have
criticized in United States v. Ford, 683 F.3d 761, 767-68
(7th Cir. 2012): prosecutors tend to pile on evidence of
dubious admissibility or probative value even when
the probative admissible evidence is overwhelming
because they want to guarantee a conviction and
they know that even though no reasonable jury could
acquit in the face of the probative admissible evidence,
not all juries are reasonable.
  Which means that the government should not have
called the defendant’s former lawyer as a witness against
his former client. The fact that it was his former lawyer
testifying against him was likely to have a greater
impact on the jury than the contents of his testimony
warranted, since the contents were as we said not neces-
sarily inconsistent with innocence. The prejudice was
great in relation to the limited probative value, so
the judge should have excluded the testimony under
Rule 401. But a harmless error is not a permissible basis
for reversing a conviction (which is why prosecutors
pile on!).
  The defendants complain finally about the length of
their sentences. A sentence of 684 months—57 years—in
a criminal justice system in which parole has been abol-
ished is extraordinarily severe; the defendants were in
Nos. 11-1002, 11-1012                                   17

their late 20s when sentenced, so in all likelihood will
spend the rest of their lives in prison. But the only
ground on which they challenge their sentences is that
the judge was being vindictive in imposing them. The
original sentences had been 646 months for Williams
(the bottom of the applicable guidelines range) and
648 months for Austin (two months above the bot-
tom). The judge in the second trial added 38 months
to Williams’s sentence and 36 months to Austin’s, still
within the guidelines range, which tops off at 711; but
684 months was the statutory maximum, and so the
judge couldn’t go any higher.
  When a judge imposes a heavier sentence on retrial
than he’d imposed in the first trial and no legitimate
reason for the heavier sentence is offered, a suspicion
arises that the judge gave the heavier sentence because
he was angry at the defendant for having appealed
and gotten the judgment reversed and forced the judge
to sit through another trial of the same charges. The
Supreme Court has held that when the circumstances
of the second sentencing “pose a realistic likelihood
of ‘vindictiveness,’ ” the defendant is entitled to be
resentenced unless the court is able to offer a legitimate
justification for the higher sentence. Blackledge v.
Perry, 417 U.S. 21, 27 (1974); see also Wasman v. United
States, 468 U.S. 559, 563-65 (1984).
  But in this case the original sentences were imposed
by a different judge, so the fact that the sentences at the
retrial were heavier does not give rise to an inference
of vindictiveness. Texas v. McCullough, 475 U.S. 134, 140
18                                   Nos. 11-1002, 11-1012

(1986); United States v. Cheek, 3 F.3d 1057, 1064 (7th Cir.
1993). The Booker decision restored the sentencing discre-
tion that the Sentencing Guidelines had removed, and
the result is that different federal judges not infre-
quently give significantly different sentences for the
same criminal conduct. Federal judges are now permitted
to have their own penal theories, Spears v. United States,
555 U.S. 261, 265-66 (2009) (per curiam); United States v.
Aguilar-Huerta, 576 F.3d 365, 367 (7th Cir. 2009), and
different penal theories are apt to generate different
sentence lengths. The district judge who imposed the
second sentences expressed particular concern, not inap-
propriately, with the defendants’ use of masks, which
could greatly increase the difficulty of proving guilt;
his predecessor had not mentioned the masks.
  The defendants argue that the judge’s vindictiveness
is evidenced by his having given the two defendants
identical sentences despite the “unique circumstances”
of each. (The first judge had given Austin a slightly
higher sentence on the ground that he had played a
bigger role in planning the robberies.) But perhaps
because the defendants, though represented by different
lawyers, filed a single opening brief and a single reply
brief, they have never specified the differences between
the defendants’ culpability that might have compelled
a reasonable judge to give their clients different sen-
tences. It would of course be awkward for a brief filed
on behalf of both to argue that one should be given a
shorter sentence than the other—and if they were
given different sentences one sentence would have to be
Nos. 11-1002, 11-1012                                    19

shorter than the other. The lawyers should have filed
separate briefs with regard to the sentences.
  The judgments are
                                                 A FFIRMED.




  H AMILTON, Circuit Judge, concurring in part and dis-
senting in part. I agree that the evidence was sufficient
to support the convictions of both Williams and Austin
and that the district judge did not err in sentencing.
I concur in those portions of the court’s opinion and in
the judgment affirming Austin’s conviction and sentence.
   I respectfully dissent from the affirmance of Williams’s
conviction. For our adversarial system of criminal justice
to function, a defendant must have one person who is
zealously acting in his interests — his defense lawyer.
Criminal defense lawyers have many duties. Those
duties include trying to save their clients from their
own folly, especially as they face an intimidating and
even frightening criminal justice system. If the lawyer’s
first response to an idea like Williams’s false alibi can be
to disclose that information to the court and prosecutor,
we will erode the confidence that accused clients
should have in their lawyers. In the long run, we will
undermine the ability of those lawyers to represent
their clients effectively.
20                                    Nos. 11-1002, 11-1012

   Williams was denied the effective assistance of counsel
when his original lawyer breached his professional
duties of loyalty and confidentiality and then became a
witness against him without objection from his new
trial counsel. Although the question of prejudice is a close
one, I would remand for a new trial. The prosecution
itself has described the original lawyer’s testimony as
“essential” to its case against Williams, and the testi-
mony let the prosecutor force Williams to admit fifteen
times that the contents of the letter he gave to the
lawyer were lies. I address first the performance prong
of Strickland v. Washington, 466 U.S. 668 (1984), explaining
the original lawyer’s breach of his duties of loyalty
and confidentiality and turning then to trial counsel’s
failure to object to the original lawyer’s testimony.
I conclude with the prejudice prong of Strickland and
the results of the failure to provide effective assistance
of counsel.


I. The Performance Prong — Loyalty and Confidentiality
   Defendants facing criminal charges often come up
with stupid, even criminal, ideas to try to beat the
charges. Their lawyers often learn of these stupid ideas.
Williams fit right into that pattern when he gave his
first lawyer, Dennis Ryan, a sealed letter for his cousin
asking for support for a false alibi. Ryan was properly
suspicious. He opened the letter and realized that
Williams was trying to use him as a messenger to help
concoct a false alibi.
Nos. 11-1002, 11-1012                                    21

  Any lawyer who has had a dishonest or unethical
client, and just about any experienced criminal defense
lawyer, can appreciate the problem here. Ryan was upset
and offended, and he decided to withdraw from the
case. Ryan had that right, but the problem is how he did
so. Without talking with his client, his first action was
to file in court a motion to withdraw supported by his
own affidavit fully explaining the circumstances. Making
matters much worse for his client, he failed to obtain
court permission to file his motion under seal, and thus
gave the prosecutor full access to the motion and the
affidavit, and eventually to the letter. In my view, the
result was a breach of his professional duties of loyalty
and confidentiality to his client, and a failure to act
as the counsel that the Sixth Amendment promises.


  A. Strickland and Professional Standards
  Before explaining just how the lawyer breached his
duties of loyalty and confidentiality, let’s look at the
connection between professional standards and the
Sixth Amendment right to counsel. To show a violation
of his right to counsel, the performance prong of Strickland
v. Washington requires Williams to show that his lawyers
performed seriously below professional standards and
that their failures prejudiced him. 466 U.S. at 687.
The constitutional standard is “reasonableness under
prevailing professional norms.” Id. at 688.
  Strickland and the Sixth Amendment right to counsel
do not constitutionalize all the rules of professional
conduct and the applicable commentary, but those stan-
22                                     Nos. 11-1002, 11-1012

dards provide valuable guidance. “Prevailing norms of
practice as reflected in American Bar Association
standards and the like, e.g., ABA Standards for Criminal
Justice 4-1.1 to 4-8.6 (2d ed. 1980) (’The Defense Function’),
are guides to determining what is reasonable, but they
are only guides.” Id. at 688; see also Padilla v. Kentucky,
130 S. Ct. 1473, 1482 (2010) (applying “weight of
prevailing professional norms” to hold that criminal
defense attorney provided ineffective assistance by
failing to advise client that guilty plea would make
client subject to automatic deportation; standards are
“only guides,” not “inexorable commands,” but “may be
valuable measures of the prevailing norms of effective
representation”); Bobby v. Van Hook, 130 S. Ct. 13, 17 (2009)
(faulting court of appeals for using ABA guidelines
that post-dated the relevant conduct and treating them
“not merely as evidence of what reasonably diligent
attorneys would do, but as inexorable commands”).
  Strickland specifically mentions the duty of loyalty,
466 U.S. at 688, and as part of the “overarching duty to
advocate the defendant’s cause,” the constitutional stan-
dard surely includes the duty of confidentiality unless
there is a powerful reason to make a disclosure of a
confidence. In a case presenting a conflict between
duties to a client and duties to a court, the Supreme
Court relied heavily on the American Bar Association’s
Model Rules of Professional Conduct, which had been
widely adopted at that point, and the official com-
mentary and scholarly writing on the problem,
particularly where “virtually all of the sources speak
with one voice.” Nix v. Whiteside, 475 U.S. 157, 166 (1986);
Nos. 11-1002, 11-1012                                   23

accord, McClure v. Thompson, 323 F.3d 1233, 1241-43
(9th Cir. 2003) (making this point while holding that
lawyer did not breach constitutional or professional
standards by giving police the locations of kidnapped
children he feared were dying and needed rescue). In
this case, virtually all sources speak with one voice
with respect to two key failures by Williams’s original
lawyer.


 B. Clients With False Defenses
  The problem the lawyer faced — a client who wants to
concoct a false alibi or other defense — is not rare.
The governing professional standards have been developed
and applied for generations. Must the lawyer remain
silent? May he disclose the client’s plan? Must he
disclose it? May or must the lawyer withdraw? The
boundaries between disclosures that are prohibited,
permitted, or required have always been contro-
versial and changing. See generally 2 Hazard & Hodes,
The Law of Lawyering § 29.2 (3d ed. 2011) (“The situ-
ations treated in Rule 3.3 entail the most severe
tension between duties to a client and duties to the tribu-
nal.”).
  As we’ll see, though, there is a clear professional con-
sensus on two central points. First, before a lawyer dis-
closes the client’s confidences, the lawyer has an obliga-
tion, where practicable, to try to convince the client to
change course. If the persuasion is not successful and
the lawyer seeks to withdraw, the lawyer may or may
24                                  Nos. 11-1002, 11-1012

not have to disclose the reasons for doing so. If the
lawyer decides or is required to disclose the client’s
confidences, the second point of consensus is that the
lawyer has an obligation to do so in a way that
minimizes harm to the client. Lawyer Ryan failed to
adhere to both of these standards and denied Williams
the effective assistance of counsel.
  The key provisions in the modern rules of professional
conduct are Rule 1.6 on the duty of confidentiality and
Rule 3.3 on the duty of candor to a tribunal. The history
of those rules and their predecessors shows shifting
standards on when a lawyer may or must disclose a
client’s confidential information. Older standards of
what is now Rule 1.6 permitted disclosure only to
prevent reasonably certain death or substantial bodily
harm. Exceptions were later added to prevent fraud that
is reasonably certain to cause substantial financial
injury, and, in perhaps the broadest formulation, to
prevent “a crime.” That broadest formulation is the
standard that applied in the Northern District of Illinois
when Ryan was representing Williams. See Northern
District of Illinois, Rules of Professional Conduct, Local
Rule 83.51.6 (effective Sept. 1, 1999, including amend-
ments through Apr. 1, 2006). Under the rules in effect
in 2007, lawyer Ryan did not have a professional duty
to remain silent when he realized that Williams was
trying to use him as a conduit to help him concoct a
false alibi. Williams’s effort fits the definition of a
criminal attempt to obstruct justice. That’s a crime, and
Rule 83.51.6 did not forbid disclosure if the lawyer rea-
Nos. 11-1002, 11-1012                                          25

sonably believed it was necessary to prevent successful
commission of the crime.1
  But the definition of the crime is actually the last step
in the analysis. The focus must first be on the issue of
necessity. When a client insists on committing perjury,
the lawyer faces a difficult problem. How should a
lawyer weigh the duty to the client against the duty to
the tribunal? Especially for a lawyer in a criminal case,
there is no completely satisfactory answer to this
difficult question, as Professors Hazard and Hodes
explain in detail in their treatise. See generally 2
Hazard & Hodes, The Law of Lawyering §§ 29.15 to 29.21
(reviewing debates and evolution of professional
standards for dealing with this dilemma). Because there


1
  Since June 2011, the Northern District of Illinois has used the
ABA Model Rules of Professional Conduct, which provide a
narrower exception in Rule 1.6. See Northern District of Illinois,
Rules of Professional Conduct, Local Rule 83.50 (adopted
June 2, 2011). My colleagues’ criticism of that amendment as
“less protective of public safety” is not warranted. As con-
troversial as some of these issues may be, our colleagues in
the Northern District could reasonably conclude that rules
imposing stronger duties of loyalty and confidentiality are
more likely in the long run to encourage clients to trust their
lawyers and the lawyers’ advice than rules that make it
easier for criminal defense lawyers to become witnesses
against their clients. That’s certainly the predominant view of
authorities on professional responsibility. And the amended
Northern District rule still allows a lawyer to disclose client
confidences to protect lives and safety and to prevent or
remedy substantial financial harm.
26                                      Nos. 11-1002, 11-1012

is no perfect answer here, and because disclosure is
permitted only when the lawyer reasonably believes it is
necessary to prevent the crime or harm, the lawyer has
a duty to the client to try to reconcile those conflicting
duties to the client and the tribunal before making
a disclosure.
  That’s why agreement in the profession has been uni-
versal on the first key point: Before taking any further
steps toward disclosure or any other imperfect solution,
a lawyer who believes the client intends to commit
perjury must, when possible, first confront the client
and try to convince him to change course. “It is universally
agreed that at a minimum the attorney’s first duty
when confronted with a proposal for perjurious testi-
mony is to attempt to dissuade the client from the
unlawful course of conduct.” Nix v. Whiteside, 475 U.S.
at 169 (holding that lawyer did not deny effective assis-
tance by persuading client not to commit perjury);
accord, Model Rules of Professional Conduct, Rule 1.6,
comment ¶ 14 (2007) (“Paragraph (b) permits disclosure
only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes
specified. Where practicable, the lawyer should first seek to
persuade the client to take suitable action to obviate the need
for disclosure.”) (emphasis added); Restatement (Third)
of Law Governing Lawyers § 120, comment g (2000)
(“Before taking other steps, a lawyer ordinarily must
confidentially remonstrate with the client or witness not
to present false evidence or to correct false evidence
already presented. Doing so protects against possibly
harsher consequences. The form and content of such a
Nos. 11-1002, 11-1012                                  27

remonstration is a matter of judgment. The lawyer must
attempt to be persuasive while maintaining the client’s
trust in the lawyer’s loyalty and diligence. If the client
insists on offering false evidence, the lawyer must
inform the client of the lawyer’s duty not to offer
false evidence and, if it is offered, to take appro-
priate remedial action.”); 2 Hazard & Hodes, The Law of
Lawyering § 29.21 (“There is universal agreement that
the first step should be to urge the client to rectify the
situation, and near-universal agreement that if that ap-
proach fails the lawyer must withdraw if possible.”).
  That is also the instruction of the rules that governed
practice in the Northern District of Illinois when Ryan
made his disclosure. The district’s version of Rule 1.6(b)
in 2007 allowed disclosure in case of an intended
crime, but the commentary described just what a lawyer
should do upon learning that a client intends to commit
a crime: “In any instance in which the lawyer learns of a
client’s intention to commit a crime, where practical
the lawyer should seek to persuade the client to take
suitable action.” Local Rule 83.51.6, Committee Com-
ment. And the comment to the Northern District’s adop-
tion of Rule 3.3 specifically discussed the problem of
planned perjury by the accused:
   Whether an advocate for a criminally accused has
   the same duty of disclosure has been intensely de-
   bated. While it is agreed that the lawyer should
   seek to persuade the client to refrain from perjurious
   testimony, there has been dispute concerning the
   lawyer’s duty when that persuasion fails. If the con-
28                                    Nos. 11-1002, 11-1012

     frontation with the client occurs before trial, the
     lawyer ordinarily can withdraw. . . . If withdrawal
     will not remedy the situation or is impossible, the
     advocate should make disclosure to the court. It
     is for the court then to determine what should be
     done — making a statement about the matter to the
     trier of fact, ordering a mistrial, or perhaps nothing.
Local Rule 83.53.3, Committee Comment (emphases
added). Note that this guidance assumes that a client’s
attempt at perjury should not be reported to the court if
persuasion works. That fits with Rule 83.51.6(b), which
allows disclosure to the tribunal if “necessary,” meaning
that lesser remedial measures either have not worked or
will not work. Even if persuasion does not work and
disclosure is made to the court, whether any further
disclosure should be made (such as to the prosecutor) is
a question for the court, not the defense lawyer.
   My colleagues emphasize that Williams had completed
the crime of attempting to suborn perjury. That is techni-
cally correct, but his attempt caused no harm. It is of
course possible that Williams, having been thwarted by
Ryan, would have tried again. The possibility that he
might try again fits this case into the pattern of
the client who proposes perjury and who may be per-
suaded not to follow through. Recall that the standard
for a lawyer’s disclosure of client confidences is neces-
sity. That’s true under every relevant version of
Rules 1.6(b) and 3.3.(b). Disclosure here could not have
been necessary unless and until Ryan tried and failed to
persuade Williams to change course.
Nos. 11-1002, 11-1012                                     29

  That leads to the second key point on which there is
also universal agreement. Even if persuasion fails and
the lawyer decides to make a disclosure to the court,
the disclosure should be no greater than necessary to
accomplish its purpose. This point follows from
the standards of necessity and the conflict between the
lawyer’s duties to both client and tribunal. The commen-
tary to Rule 1.6 is clear:
    In any case, a disclosure adverse to the client’s
    interest should be no greater than the lawyer reason-
    ably believes necessary to accomplish the purpose . . . .
    If the disclosure will be made in connection with a
    judicial proceeding, the disclosure should be made in
    a manner that limits access to the information to the
    tribunal or other persons having a need to know it and
    appropriate protective orders or other arrangements
    should be sought by the lawyer to the fullest extent
    practicable.
Model Rules of Professional Conduct, Rule 1.6, comment
¶ 14 (2007) (emphasis added). The Northern District
of Illinois adopted this comment in substance for
Local Rule 83.51.6. Accord, e.g., Restatement (Third) § 120,
comment h (in taking necessary remedial steps, lawyer
must proceed so as to cause “minimal adverse effects” for
the client).
  The majority treats these points of universal agree-
ment as mere “recommendations” that left lawyer
Ryan with broad discretion to disregard them in
making his disclosure. The majority also asserts that
these standards do not reflect the constitutional standard
30                                     Nos. 11-1002, 11-1012

of effective counsel under the Sixth Amendment. I re-
spectfully disagree on both points. The Sixth Amendment
standard is that of professional reasonableness. Where
the standards of professional conduct, including explana-
tory comments, reflect such a clear and broad consensus
as they do here, they provide a reliable guide to the
Sixth Amendment and the advocacy that an accused
has every right to expect from his lawyer. See Padilla,
130 S. Ct. at 1482 (relying on “weight of prevailing pro-
fessional norms” in applying Sixth Amendment to
lawyer’s advice on immigration consequences of guilty
plea); Van Hook, 130 S. Ct. at 17 (relying on general stan-
dards in effect at time of trial); Whiteside, 475 U.S. at 167-
70 (relying on model rules and commentary in
applying Sixth Amendment); Strickland, 466 U.S. at
688 (Sixth Amendment “relies on the legal profession’s
maintenance of standards sufficient to justify the law’s
presumption that counsel will fulfill the role in the ad-
versary process that the Amendment envisions”). This
is not a case that requires fine parsing of the differences
between the rules and the commentary.
  The relevant professional standards are clear. If a
lawyer is to disclose the client’s confidential affairs to
prevent a crime or prevent other serious harm, the dis-
closure must be a matter of necessity. Disclosure must
be the last resort, not the first response. Unless an emer-
gency makes persuasion impractical, the lawyer first
owes the client the opportunity to change his course
based on the lawyer’s professional advice. And if the
lawyer is unable to persuade the client to change
Nos. 11-1002, 11-1012                                      31

course, the lawyer has a duty to warn the client that
the lawyer will need to take remedial action, up to and
including disclosing the circumstances to the court, and
to withdraw from the representation if possible.2
  At a minimum, then, in this case Ryan should have
told Williams that he had read the letter, advised against
perjury, warned Williams that he would disclose the
information to the court if necessary, and asked Williams
about his intentions. Only if he was not satisfied with
Williams’s answer should he have asked the court for
leave to withdraw. If he provided the court an ex-
planation at all, it should have been filed under seal
so the prosecutor would not see it. The duties of
loyalty and confidence required at least this degree of
effort to protect his client, even from his own crim-
inal stupidity.
  Ryan’s decision to go straight to the court and prosecu-
tor, without talking with his client first, ran counter to
all the sources on standards of professional conduct. In
that respect, this case is similar to Nix v. Whiteside, where
“virtually all of the sources speak with one voice.” 475
U.S. at 166 (finding no denial of effective assistance);
accord, McClure v. Thompson, 323 F.3d 1233, 1241-42
(9th Cir. 2003) (making this point while holding that
lawyer did not breach constitutional or professional
standards by making anonymous call to police to


2
  Such a warning is consistent with Rule 1.6 and Rule 3.3. See
Restatement (Third) § 120, comments g & h; 2 Hazard & Hodes,
The Law of Lawyering § 29.21.
32                                  Nos. 11-1002, 11-1012

give locations of kidnapped children he feared were
dying and needed rescue). Contrary to professional
standards, Ryan transformed himself from the de-
fendant’s advocate into a prime witness against him.
The lawyer’s breach of duties of confidentiality and
loyalty was so clear and so basic as to fall below the
constitutional standard for effective assistance of coun-
sel. As best I can tell, the majority’s acceptance of
this lawyer’s choice to skip the step of talking to
his client, when that step was quite practical, is simply
unprecedented.
  We should not excuse this failure to consult with or
warn the client — and certainly not based on specula-
tion that doing so would have been futile. There was
ample time to talk with the client. Ryan could not
have known whether Williams would heed advice and
a warning that he never gave. The requirement that
lawyers attempt to dissuade their clients from illegal
acts is based not on optimism about their chances of
success, but on the understanding that disclosure must
be the last resort for a loyal, confidential advocate
whose duties include trying to save the client from his
own folly. The Northern District’s committee comment
to Local Rule 83.51.6 expressed this long-understood
preference for lawyers to adopt the role of confidant
before the role of informant: “[T]o the extent a lawyer
is required or permitted to disclose a client’s purposes,
the client will be inhibited from revealing facts which
would enable the lawyer to counsel against a wrongful
course of action. The public is better protected if full
Nos. 11-1002, 11-1012                                         33

and open communication by the client is encouraged
than if it is inhibited.” 3


    C. Use of the Lawyer’s Breaches at Trial
  Ryan’s breach of his professional duties would not
have caused actual harm to Williams if the prosecutor
had not called Ryan as a witness at trial. I join my col-
leagues’ disapproval of the prosecutor’s decision to call
Ryan to testify against his former client. Model Rule
of Professional Conduct 3.8(e) (2007) says that a
prosecutor shall
      not subpoena a lawyer . . . to present evidence about
      a past or present client unless the prosecutor rea-
      sonably believes:
          (1) the information sought is not protected from
          disclosure by any applicable privilege;



3
  I agree with my colleagues that Williams’s attempt to suborn
perjury from his cousin was not a privileged attorney-client
communication. It was not even a communication between
attorney and client. The lawyer’s duty of confidentiality is far
broader, though. See, e.g., Stepak v. Addison, 20 F.3d 398, 406
(11th Cir. 1994), citing Brennan’s Inc. v. Brennan’s Restaurants,
Inc., 590 F.2d 168, 172 (5th Cir. 1979); Model Rules of Profes-
sional Conduct, Rule 1.6(a) (2007). A lawyer is also bound by a
broad duty of loyalty. Strickland, 466 U.S. at 688. This duty
of loyalty applies even when the client is considering or at-
tempting a foolish and illegal course of action, and it surely
includes a duty to try to convince the client to change course.
34                                      Nos. 11-1002, 11-1012

        (2) the evidence sought is essential to the success-
        ful completion of an ongoing investigation or
        prosecution; and
        (3) there is no other feasible alternative to obtain
        the information. . . .
That rule was not adopted by the Northern District of
Illinois until ten months after this trial, but it still applied
to federal prosecutors in Illinois. See Illinois Rules of
Professional Conduct, Ill. S. Ct. R. 3.8(e) (adopted Jan. 1,
2010); 28 U.S.C. § 530B(a) (“An attorney for the Govern-
ment shall be subject to State laws and rules . . . governing
attorneys in each State where such attorney engages in
that attorney’s duties.”); see also United States v.
Colorado Supreme Court, 189 F.3d 1281, 1288 (10th Cir. 1999)
(holding that Colorado rule equivalent to Rule 3.8(e)
applied to federal prosecutors). Rule 3.8(e) embodies a
very old norm against non-essential testimony from
the opposing party’s lawyer. See, e.g., Berd v. Lovelace, 21
Eng. Rep. 33 (1577) (excusing solicitor from testifying
about his client). The government asserts that calling
Ryan was consistent with the rule because his testimony
was “essential” to the case against Williams. More on
that in a moment.
  Trial counsel also had an opportunity to try to prevent
Ryan’s breach of his professional duties of confidentiality
and loyalty from harming Williams. Yet trial counsel
did not register an objection to Ryan’s testimony in
either trial. In light of the universal agreement on the
lawyer’s duty to try first to persuade the client to
change course and to warn of the lawyer’s duty to
Nos. 11-1002, 11-1012                                   35

disclose, as well as the duty to minimize harm in the
course of withdrawal and disclosure, the lack of objection
here is a mystery to me. When a defense lawyer sees
the client’s former defense lawyer on the government’s
witness list, alarm bells should ring. There was no ap-
parent tactical reason why the defense would have
wanted Ryan to testify, and the prosecution could not
point to controlling legal authority authorizing Ryan’s
chosen course of immediate disclosure to the judge
and the prosecution. In the absence of controlling legal
authority allowing Ryan’s testimony, it should have
been obvious that an objection was warranted. The
failure to make one fell below professional standards
of competency.
  The majority asserts that Ryan’s testimony could not
have violated Williams’s right to effective counsel
because Williams was no longer his client at trial. I re-
spectfully disagree. The breach of the lawyer’s duties of
loyalty and confidentiality occurred while he was
still representing Williams but seeking to withdraw.
More important, though, both duties continue beyond
the termination of the lawyer-client relationship. Rule 1.6
imposes no time limits on the duty of confidentiality,
and paragraph 18 of the comment makes explicit that
the duty of confidentiality continues after termination.
Rule 1.9(c) states that a lawyer may not use information
relating to representation of a former client to the disad-
vantage of that client except as the professional rules
would permit or require.
  The fact that the breaches did not finally cause harm
to Williams until the trial does not excuse the original
36                                   Nos. 11-1002, 11-1012

professional and constitutional breaches. To test the
majority’s logic on this point, consider the extreme case
of the defendant’s former lawyer, retired from practice
and thus not subject to professional discipline, volunteer-
ing to testify for the prosecution about client con-
fidences without even arguable justification for disclosure
under Rules 1.6 or 3.3. The constitutional violation in
such a case should be obvious. The majority also begs
the question by suggesting that a retrial would do no
good because the government could just subpoena
Ryan again. Such a subpoena, seeking testimony based on
client confidences breached in violation of both profes-
sional and constitutional standards, should be quashed.
   The majority questions, though, whether the appro-
priate remedy for the lawyer’s breaches should have
been to exclude his testimony. I agree that an ex-
clusionary remedy should be a last resort rather than a
first impulse, but recall that in my view, we are dealing
here with a breach of the disclosure of client confidences
that violated the lawyer’s professional duties and the
accused’s constitutional rights. No other remedy is ap-
parent. Williams certainly could not sue Ryan for
damages on the theory that he was wrongfully convicted
as a result of Ryan’s breaches. See Lieberman v. Liberty
Healthcare Corp., 948 N.E.2d 1100, 1107-08 (Ill. App. 2011)
(collecting Illinois cases requiring that conviction be
set aside before client can bring legal malpractice claim
against criminal defense attorney). The Second Circuit
has explained that district courts should have discretion
to suppress evidence obtained in violation of ethical
rules governing the prosecutor (by interrogating a coun-
Nos. 11-1002, 11-1012                                    37

seled suspect without informing counsel). United
States v. Hammad, 858 F.2d 834, 841-42 (2d Cir. 1988). In
Hammad, the court found that suppression was an error
where the underlying ethical standard had not been
clear (akin to a good faith exception), but also made
clear that suppression would be appropriate to remedy
clear constitutional violations and as a part of the
court’s supervisory powers. Id.
  The argument for suppression is at least as strong
when evidence becomes available because of a defense
lawyer’s breach of professional duties. A client who
hires a lawyer to defend him on criminal charges is
entitled to expect the lawyer to comply with both the
standards of professional conduct and the Sixth Amend-
ment. When a court appoints a lawyer to represent an
indigent defendant, as happens in most cases, that client
is entitled to no less. The idea that a client could be con-
victed based on information disclosed by a court-
appointed attorney in violation of his professional and
constitutional duties is, to me at least, appalling. It is
comparable to using a coerced confession to convict.
  The majority suggests that we should not exclude
the lawyer’s evidence but should rely on discipline
for professional misconduct to deter violations of pro-
fessional standards. For three reasons, that is not a suffi-
cient remedy. First, deterrence is not the sole rationale
for exclusionary rules. We have here a violation of a
constitutional right by an officer of the court. To protect
the integrity of the courts’ own role, we should not be a
party to using the direct fruits of that violation to
38                                    Nos. 11-1002, 11-1012

convict and imprison the victim of the violation. Second,
professional discipline would provide no remedy for
the victim. To make this point clearly, let’s suppose the
evidence against the defendant were a lot weaker than
the actual evidence against Williams, so that we would
all agree that the lawyer’s testimony affected the ver-
dict. We still should not tolerate use of the lawyer’s
testimony offered in violation of professional and con-
stitutional duties. Finally, where exclusionary rules
are well established, such as with Fourth or Fifth Amend-
ment violations by police officers, the misconduct
can subject the officers to civil or even criminal liability,
which can also deter. Yet the evidence is still excluded,
as it should be here.
  “The duty of an attorney to keep his or her client’s
confidences in all but a handful of carefully defined
circumstances is so deeply ingrained in our legal system
and so uniformly acknowledged as a critical component
of the reasonable representation by counsel that de-
parture from this rule ‘make[s] out a deprivation of the
Sixth Amendment right to counsel.’ ” McClure, 323 F.3d
at 1242-43, quoting Whiteside, 475 U.S. at 171. Williams
has made that showing here.


II. Prejudice Under Strickland
  The prejudice prong of Strickland requires a con-
victed defendant to show that, but for his lawyer’s unpro-
fessional error, there is a reasonable probability that
the outcome would have been different. 466 U.S. at 694.
The defendant need not show that an acquittal was
Nos. 11-1002, 11-1012                                       39

more likely than not, and the fact that evidence was
sufficient to convict is certainly not controlling. See Stanley
v. Bartley, 465 F.3d 810, 814 (7th Cir. 2006). The strong
evidence against Williams makes this a close question
for me, but the great prejudice caused by his lawyer’s
breach of loyalty and confidentiality and the prosecu-
tion’s emphasis on that evidence tip the scales for me
in favor of finding prejudice and ordering a new and
fairer trial.
  The prosecution closed its case with flair, calling
lawyer Ryan to tell the jury about Williams’s “rotten”
scheme to procure false alibi testimony, and just before
resting, reading the crude letter aloud to the jury. When
Williams testified, the prosecutor finished his cross-
examination in devastating fashion by walking Williams
through the letter to his cousin line by line, forcing him
to admit that each of fifteen statements in the letter was
a lie. During closing arguments, the government again
emphasized Williams’s attempt at a false alibi.
  The circumstantial evidence against Williams was
certainly strong. The fact that he was found in a car with
some of the stolen money a few hours after one robbery
was strong evidence that he was involved. He was also
wearing shoes that were consistent with tracks left by
one of the robbers and stained with a dye that matched
a robber’s clothing, and he owned a gun like one used
in the robberies. But the direct identification evidence
was not ironclad. A cooperating accomplice identified
Williams and Austin as the robbers after receiving very
lenient treatment, and his testimony was vulnerable to
40                                  Nos. 11-1002, 11-1012

credibility challenges. An admittedly angry ex-girlfriend
identified Williams as the masked man from a video by
only “his movement and the way he walk,” and a neutral
witness saw only two people emerging from a getaway
car that the prosecution’s star cooperating witness
said should have held three.
   The question for us is whether there is a reasonable
probability that the erroneously admitted evidence
affected the verdict. Given some of the weak spots in the
government’s case, it’s not hard to imagine a skeptical
juror, troubled by doubts, being swayed by another
juror’s argument: “But if he didn’t do it, why would he
try to fake an alibi?” And recall that the prosecution
has advised us that Ryan’s testimony was “essential” to
its case, as needed to satisfy Rule 3.8(e). My colleagues
disagree with that assessment, but I would give more
weight to the prosecution’s view of its own case and
resolve the close question in favor of a new trial.
  Defendant Williams presents one of those rare cases
where ineffective assistance can be decided from the
contents of the record on direct appeal. I would remand
for a new trial of Williams, this time without any
mention of lawyer Ryan or the letter as part of the pros-
ecution’s case-in-chief.




                         9-11-12
