My law partner Carl and I represent lots of people who are charged with federal crimes, both here in Atlanta and throughout the country. Each of us recently had cases where we believed that our clients were innocent. In each case, we also each faced federal prosecutors who aggressively went after our clients. All charges were dismissed recently against these clients, which leads to some thoughts as to why this happens in some cases but not in other situations.
Not everyone recognizes the differences between how federal criminal cases are brought and the system used in most state court systems. In the state systems, investigators bring their work to an Assistant District Attorney. For the most part, these assistant DA’s cannot refuse a case that the police bring to them. In federal court, on the other hand, the Assistant United States Attorney (or “AUSA”) has broad discretion to accept or reject just about anything brought to him or her by one of the federal investigative agencies. This greater discretion means that federal prosecutors usually weed out, and reject, the weakest criminal cases. Because AUSA’s have greater discretion to turn down less strong cases, they end up winning far more of the matters that they do take on.
The Department of Justice (or “DOJ”) has a Manual that is more or less the Bible for federal prosecutors. The main policy statement (section 9.27.220) on when an AUSA should accept a case for federal prosecution says the following: “The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, that the admissible evidence will probably be sufficient to obtain and sustain a conviction, and that a substantial federal interest would be served by the prosecution, unless, in his/her judgment, prosecution should be declined because:: The person is subject to effective prosecution in another jurisdiction; or There exists an adequate non-criminal alternative to prosecution.” In other words, when a federal prosecutor believes he or she has enough “admissible evidence…to obtain and sustain a conviction”, then that federal prosecutor can move forward with an indictment and seek a conviction.
My friends and family sometimes ask why we are occasionally able to get federal prosecutors to drop all charges even after an indictment, and once in a while even in the final weeks leading up to a trial. After all, didn’t the prosecutor already have enough evidence to “obtain and sustain a conviction?” If they had sufficient evidence to indict the client, then why are they now willing to drop all the charges? What we often find is that that prosecutor loses faith in his or her case, perhaps because their witnesses change their stories, sometimes because the AUSA learns new information about its own witnesses, or other times when we on the defense side reveal exculpatory information about which the government was not previously aware.
On occasion, I hear lawyers (and others) says something like “the AUSA did the right thing” in dismissing a case. I try to not be a cynic, but in my 34 years experience the ONLY reason a federal prosecutor drops a case is because of the fear of losing. They have so much discretion, and win so often, that the prospect of losing is an AUSA’s greatest nightmare. We are fairly certain that is what happened in the recent cases where all charges were dropped against our clients. We had very strong defenses (as I mentioned, we each believed in our clients’ innocence), and each prosecutor realized they were in for a real battle if the matters ended up in trial. They simply had doubts about whether they would win.
We are always grateful when a prosecutor decides to drop charges. However, we are also mindful of the toll on our clients. The client was charged with a federal crime, had their name in public, and faced the prospect of going to jail. We are glad to get a good result, but also recognize it came with a cost to the person we represented.