Does Hiring a Former Prosecutor Actually Help??

as Defense Lawyers: Is It an Advantage?

To date, there has been no published study which indicates that defense lawyers with prior federal prosecutorial experience achieved better client outcomes than defense lawyers without such experience. In a 1984 decision, the Supreme Court noted that “under the Sixth Amendment, the standard for inadequate assistance of counsel is whether counsel’s performance fell below an objective standard of reasonableness... and whether such performance prejudiced the defense.” The prior employment history of the defense lawyer was not a factor. Also, while a defense lawyer may have prior experience as a federal prosecutor, the lawyer’s former prosecutor status provides no guarantee that the lawyer has ever conducted a federal jury trial. There are many defense lawyers with impeccable records who never worked for the government, and there are many former federal prosecutors who have not conducted a trial (either as prosecutors or defense lawyers). Even on the question of the Sixth Amendment’s Confrontation Clause and testimonial hearsay, the Supreme Court’s 2004 opinion on that question was fairly straightforward. (Again, the majority of the members of the Supreme Court were former prosecutors, not necessarily former public defenders or defense counsel). On the federal bench, former prosecutors outnumber former public defenders roughly four to one. This is a statistic, not a reflection of the type of experience (prosecutorial, governmental, or defense) which is most valuable in a client’s defense. In a 2016 decision, the Supreme Court protected the right of defendants to use “untainted assets” to retain chosen counsel. Yet, pretrial restraint under 21 U.S.C. § 853(e) can block a defendant from hiring the lawyer of his choice, despite the Supreme Court’s observation in a 2006 decision that “wrongful denial of chosen retained counsel” is structural error.

What Insider Knowledge Do Former Federal Prosecutors Bring to Your Defense?

Insider knowledge of how the U.S. Department of Justice (DOJ) and U.S. Attorney’s Offices handle criminal investigations and prosecutions can provide valuable insights for your defense counsel. Former federal prosecutors, who have a direct understanding of the procedures and guidelines governing these agencies, can use this information to help build and implement your defense. Here are some examples of insider knowledge former federal prosecutors have and how this information can be used to your advantage:

1. Charging Standards and the Need for Approval Prior

to filing criminal charges, federal prosecutors are required to have a good reason. Justice Manual 9-27.220 provides that the prosecutor must believe that “the evidence is sufficient to obtain and sustain a conviction in court.” With this in mind, DOJ agents and prosecutors will work with one another to build a strong case before filing charges, and an experienced former federal prosecutor knows what this looks like from the inside. He or she can help you find and use any weaknesses in the prosecution’s case.

2. Advanced Approval and Approval from the DOJ in Washington, D.C. While the DOJ’s Organized Crime and Gang Section in Washington, D.C.

requires advance approval before local prosecutors can file RICO charges, local offices can’t just decide to file criminal tax charges; they must first get authorization from the DOJ’s Tax Division. This makes some types of federal criminal charges, such as violations of the Foreign Corrupt Practices Act (FCPA), harder for the government to initiate. In order to pursue an FCPA prosecution, for example, federal prosecutors must receive sign-off from the Fraud Section at Main Justice.

3. Authorization Prior to Seeking a Judge’s Approval

While obtaining a judge’s approval for a Title III wiretap application is required, the Justice Department must first authorize the application. This means that any time a federal agent contacts a judge seeking authority to use a wiretap, you can assume that the Justice Department has already endorsed the application.

4. The Use of Target Letters and Petitions Justice Manual 9-11.151

gives guidance to federal prosecutors on how to decide if a person is a target, a subject, or a witness to a grand jury investigation; the manual also provides guidance on the use of target letters. When you receive a target letter in the mail, an experienced former federal prosecutor can provide additional insights into the federal government’s grounds for investigating you and what you can expect next.

5. The Petite Policy and Successive Prosecutions The “Petite policy” Justice Manual 9-2.031

addresses when federal prosecutors can and cannot bring charges after a person has already been prosecuted in state court. The policy says, “generally, a federal prosecution of the same conduct that has already been the subject of a state prosecution is inappropriate.” The Petite policy is an internal Justice Department policy that confers no rights on defendants; it permits a successive federal prosecution where a compelling federal interest was left unvindicated and Department approval is obtained. However, in a 2019 decision, the Supreme Court held that the dual-sovereignty doctrine allows state and federal governments to prosecute the same individual for the same conduct; the Court held that this means double jeopardy does not apply to successive state and federal prosecutions.

Can Ethics Rules Prevent a Former Federal Prosecutor from Taking Your Defense Case?

U.S.C. § 207(a)(1) prohibits former employees of the executive branch from representing clients in “matters” they participated in while employed by the federal government. To represent clients in these matters, former employees must first obtain a prospective waiver from the appropriate agency head. For example, former U.S. Attorneys will generally need to obtain a prospective waiver from the DOJ and/or EOUSA before they can represent clients in matters they worked on while with the U.S. Attorney’s Office. The statute specifies that the prohibition applies to cases and matters that “the former employee personally and substantially worked on or participated in, or that the former employee supervised or directed to personally and substantially work on, participate in, or supervise or direct while with the federal government.” U.S.C. § 207(a)(1). As a result, the more federal prosecutors an organization has, the more potential conflicts it will have to address. For this reason, the more federal prosecutors a firm employs, the more likely it will be that any one of its outgoing attorneys was a junior member of a larger team and never “personally and substantially” worked on a particular case.

18 U.S.C. § 207(c) prohibits former “senior employees,” for one year after leaving, from making any communication to or appearance before their former agency on another& #x27;s behalf with the intent to influence, regardless of whether they worked on the matter. The statute defines “senior employee” to include any employee whose rate of basic pay was equal to or greater than 86.5% of the basic pay for Level II of the Executive Schedule; the separate two-year restriction on “very senior employees” appears in § 207(d). Because most line assistant U.S. Attorneys fall below this salary threshold, they aren’t classified as very senior employees. As a result, § 207(c) never applies to most line assistant U.S. Attorneys and senior line assistant U.S. Attorneys. U.S.C. § 216 provides for criminal penalties for willful violations of § 207, including up to five years imprisonment for violation of § 207(a)(1).

Model Rule 1.11(b) and Rule 1.11(b) of the California Rules of Professional Conduct are important provisions allowing the defense firm to keep the case if the “prohibited lawyer” (i.e., the former prosecutor) is “timely screened from any participation in the matter.” For the lawyer’s prior employment to not disqualify the defense firm from representing a client, the lawyer must (i) be timely screened, (ii) not share in any fees, and, (iii) the federal agency must receive written notice.

If you decide that you would like your lawyer to seek a waiver of disqualification on your behalf, your lawyer must obtain a prospective waiver from all appropriate individuals before they make contact. Under Model Rule 1.11(a), a lawyer who has formerly served as a public officer or employee of the government may represent a client in a matter in which the lawyer participated personally and substantially if “the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”

Finally, prosecutors who have worked the same investigation as federal agents may be subject to disqualification in state court. There have been cases where judges disqualified defense firms because a senior-level attorney at the firm had previously supervised the same case in federal court while with the United States Attorney’s Office.

Why Do Federal Prosecutors Have More Power Than Defense Lawyers?

The power to compel testimony is vested in the prosecutor and not the defense lawyer. Under 18 U.S.C. §§ 6002-6003, prosecutors are authorized to obtain a federal district judge’s order to compel testimony from individuals who testify after being granted immunity. Federal defense attorneys have no such power. The power to use a grand jury to obtain documents is an offensive one as well. While federal prosecutors are authorized to use the grand jury’s subpoena power, criminal defendants have no comparable investigative tool at their disposal. Rule 17(c) allows criminal defendants to seek subpoenas, but federal district courts require such subpoenas to satisfy the “Nixon test” of relevancy, admissibility, and specificity in order to issue a subpoena to a non-party. The only exceptions are for certain types of documents filed with the court. The prosecution, on the other hand, does not have to meet the requirements of Rule 17(c). Prior-conviction information can also have an enormous impact on a criminal defendant’s punishment. For example, under 21 U.S.C. § 851, filing a notice of prior drug convictions can lead to a doubling of an applicable mandatory minimum. While prosecutors must follow the requirements in 21 U.S.C. § 851, these penalties impose a severe consequence on defendants with a criminal history, and this gives federal prosecutors tremendous leverage in plea negotiations. Defense attorneys have a very narrow window to combat § 851 filings, and the principal means of challenging a § 851 filing is the written response authorized by 21 U.S.C. § 851(c), by which the defendant may deny the alleged prior conviction or contest its validity. Furthermore, under the United States Sentencing Guidelines, the government may move for a reduction of a defendant’s sentence due to substantial assistance (i.e., the defendant has cooperated with the government in an investigation or prosecution). However, the only party with the authority to move for a 5K1.1 substantial-assistance reduction is the government. In a 1992 decision, the Supreme Court held that 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 give the government a power, not a duty, to move for a substantial-assistance reduction, so a district court cannot order a 5K1.1 reduction over the government’s objection. The government’s refusal to make a 5K1.1 motion is reviewable only if it was based on an unconstitutional motive, such as the defendant’s race or religion, and the defendant must make a substantial threshold showing before obtaining discovery or an evidentiary hearing, which makes an effective defense strategy for obtaining a 5K1.1 reduction highly dependent on negotiation skills, as well as an intimate understanding of the procedural and substantive requirements to receive a 5K1.1 reduction. Venue selection and pretrial detention are also key areas where federal prosecutors hold substantial power. Under U.S.C. § 3237, if an offense continues into more than one district, prosecutors have the power to choose which district’s federal court will hear the case. Similarly, while 18 U.S.C. § 3142(e)(3) presumes that pretrial detention is the rule rather than the exception, federal prosecutors often have the power to determine which individuals face the presumption of pretrial detention. This is most often the case in drug, firearm, and terrorism cases.

Does a Former Prosecutor’s Title Guarantee Better Case Results?

The perceived value of a former prosecutor may have more to do with the reality of the federal legal system than with any individual lawyer’s skills or talents. In any single criminal trial, an experienced defense lawyer with no prior prosecutorial experience is just as likely to help the defendant avoid criminal liability as an experienced former prosecutor. This may be true because of the inherent difficulties in proving a federal criminal case in court. To date, about 90% of all federal criminal defendants have pleaded guilty, and less than 10% have had their cases dismissed. Roughly 2% have gone to trial, and roughly one in six of those defendants were acquitted. With these statistics in mind, you can begin to understand that most of the advertised “90% federal conviction rate” is actually a “90% guilty plea rate,” and that only a very small fraction of the federal convictions occur at trial after a defense lawyer is given a chance to contest the government’s evidence. Furthermore, during the past two decades, the number of federal criminal cases reaching trial has declined markedly. This means that, regardless of whether defense lawyers and federal prosecutors are going to trial at similar rates, there are fewer opportunities for federal prosecutors to gain trial experience. As a result, even if a former prosecutor’s title is relevant to their defense abilities, it is less relevant now than it was twenty years ago. Prior to the Supreme Court’s 2005 sentencing decision, the only means for reducing the consequences of a federal criminal conviction was by seeking the application of the Sentencing Guidelines’ “downward departure” and “downward variance” provisions in specific and highly limited circumstances. As the Supreme Court later explained in two 2007 decisions, the sentencing judges’ authority to vary from the guidelines is broad and, as a result, judges have greater discretion during the present era. This means that you can effectively challenge a recommended sentence by showing how a statutory or mandatory minimum makes a recommended sentence inappropriate. Today, only 48% of federal sentencing judges impose within-guideline sentences. Finally, the Supreme Court’s 2018 opinion confirms the principle that the decision to plead guilty, or not concede guilt at trial, is the defendant’s and not the defense lawyer’s to make. “The decision to admit guilt at trial is a crucial one that must be the defendant’s, not his attorney’s.” 138 S. Ct. 2691, 2705 (2018). This further highlights the fact that while a defense lawyer’s experience may be a valuable asset to their client in a federal criminal case, the defendant retains ultimate authority over their case strategy.

How Can I Verify a Former Prosecutor’s Experience?

When considering retaining a former prosecutor for your defense, it is important to assess their experience. Here are a few tips: - Make sure that you are retaining a former federal prosecutor who practiced in your specific type of case, as a former state prosecutor will not have any experience under the federal guidelines, Justice Manual, or federal procedural rules. - Be wary of former prosecutors who were designated as “special assistant U.S. attorneys” (SAUSA). Many of these prosecutors are designated as SAUSAs by other law enforcement agencies and work on a part-time or temporary basis. - Check with the U.S. District Court where your case is being prosecuted. You can use PACER and CM/ECF to see every federal case in which a given attorney has appeared. You can also determine if your chosen lawyer is an authorized member of the federal bar in order to represent you in court. Every federal district requires admission, and every federal district has an attorney roll available to the public. - Before deciding whether to go for a plea bargain or trial, review the judgment documents in several of your chosen lawyer’s prior cases. You will then be able to determine the sentences that were actually imposed, rather than relying on the advertisements or summaries that your lawyer puts on their website. - Keep in mind that the title of a “former prosecutor” is a very general one. While the federal district judges’ chambers, the U.S. District Attorney’s Offices (USAOs), and the U.S. Attorneys’ Offices are the principal offices in which prosecutors operate, the DOJ’s main office in Washington, D.C. (known as “Main Justice”) is another important office for prosecutors.

While there are 94 federal districts in the United States with about 6,000 assistant U.S. attorneys serving as career civil-service lawyers, each district also has a U.S. Attorney serving as the president’s top law enforcement appointee in each district. The U.S. Attorneys appointed to these positions serve terms of four years under 28 U.S.C. § 541. Due to the fact that U.S. Attorneys change when a new president is elected, much of the authority and practice of the USAOs are decided by the AUSAs. This means that, when interviewing former prosecutors, you should check their title so you know how much experience they had with the USAO and to what extent they may have been impacted by political turmoil.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.