by Jamison Koehler on November 29, 2022
At a continuing legal education class (CLE) many years ago, we were presented with the following ethical dilemma: The prosecutor comes across a piece of paper that exculpates the defendant in a pending case. The prosecutor puts the piece of paper into a large box and then delivers that and 100 other boxes to the defendant’s lawyer.
Has the prosecutor complied with his/her obligation to turn over exculpatory evidence under Brady v. Maryland?
Participants at this CLE included three young guys in cheap suits and bad haircuts who had introduced themselves as county prosecutors in Virginia. All three were adamant that the prosecutor’s obligations had been met: The exculpatory evidence had in fact been turned over to the defense. The government was under no obligation to help the defense sort through the boxes to find it.
Before I or any of the other defense attorneys in the room had a chance to object, an Assistant U.S. Attorney (AUSA) from D.C. weighed in from the back of the room with his disagreement. Such a literal interpretation of the prosecutor’s obligation, he pointed out, may have been consistent with the letter of Brady and the prosecutor’s other discovery obligations. But it was certainly inconsistent with the spirit.
A criminal proceeding, he said, is not a competition, and the prosecutor’s goal is not to win at any cost. Unlike the defense attorney’s role, which is to achieve the best possible outcome for his/her client, the prosecutor’s role is to achieve the just outcome.
No one benefits if an overworked criminal defense attorney misses a crucial piece of exculpatory evidence.
My brother-in-law, a former AUSA in D.C., recounts how he and his colleagues used to step in to help a criminal defense attorney who appeared to be struggling. It was not only that they wanted to prevent a conviction from being overturned on appeal because of ineffectiveness of counsel. They did. It was also that they did not want to unintentionally convict an innocent person.
The exchange of views described above represents to me the difference between the county prosecutors I used to deal with in Philadelphia and Virginia and the federal prosecutors I now work with in D.C.
In Philadelphia, I remember standing next to my counterpart in the prosecutor’s office and looking at the open file in front of her to find that she was misrepresenting the facts to the court. This was a woman who had sat next to me in contracts class during our first semester in law school.
The purpose of her deliberate misrepresentations was to secure another few days of detention for my client. This was the win-at-all cost mentality that was fostered by Lynn Abraham, the former District Attorney in Philadelphia.
As for Virginia, I remember being lined up hat in hand with other defense attorneys so that we could plead our case for diversion before an older prosecutor who treated us with a combination of boredom and disdain. It was hard to blame him for being so sour. I would be cranky too if I were still doing public intoxication cases after 20 years.
Given this experience, it was a welcome surprise to begin working with federal prosecutors in D.C. Handling both federal and D.C. cases in the District, these are not county prosecutors.
Considering how difficult it is to get a job as a federal prosecutor, AUSAs are generally smarter and from better law schools. Unlike the county prosecutors who are often fresh out of law school, AUSAs tend to be older lawyers who have worked elsewhere prior to becoming prosecutors. This brings maturity and perspective. Rotating from one division in the U.S. Attorney’s Office to the next, they are gaining experience and doing meaningful work, not seeking to make their careers on the backs of people charged with minor misdemeanors.
As for their interest in achieving the right outcome, not wins, I think of the two AUSAs who were the first to congratulate my client after the court granted my motion for judgment of acquittal.
I think of the many AUSAs I have worked with over the past 10 or so years who – almost without exception – have been smart, thoughtful, forthright and pleasant; who seem to express genuine concern for defendants; and who appear to be most interested not in winning but in arriving at the right outcome.
Each of you has a different role in the system. But you are ethical and measured and you play by the rules and there is no reason to be less than civil while you are going about it.
More recently – and the inspiration for this blog entry – was my surprise at encountering a federal prosecutor who, to my mind, did not quite meet this standard. In this case, it was a special Assistant U.S. Attorney (a SAUSA). This is a lawyer who is merely on loan to the U.S. Attorney’s Office for a period of time from a firm or another federal organization, presumably to gain trial experience.
I was new to the case and, with voluminous discovery, I was struggling to catch up with a complicated, multi-defendant case. There were over 60 body worn camera files, some of them over an hour long, and I could not for the life of me find any footage related to my client. So I reached out to the SAUSA: Could you point me in the right direction?
The SAUSA politely refused. And when I expressed surprise at this refusal, noting that I had never before encountered that type of response from one of his colleagues, he asked me to name those colleagues so that he could consult with them.
I assume this was his way of calling my bluff, of telling me he did not believe me.
I am not particularly proud of my response. It was in effect: Look to your right. Look to your left. It is virtually every AUSA I have ever worked with. Then there is you.
Snarky but true.
As I said this, I thought in particular of one of the SAUSA’s colleagues, an AUSA who, upon my recent appointment as replacement counsel in a complicated case, reached out immediately: Welcome to the case, he wrote in his email. There is tons of discovery. To get a sense of the case, you might want to start here.
Telling my wife about the SAUSA, I noted that I had googled him and found out that he was on loan from a big law firm in town.
My wife, a lawyer who is used to the scorched earth tactics of civil litigation, has always been surprised when she hears me talk about the collegiality of the criminal justice system.
She laughed when she heard me complain. Welcome to my world, she said.