Federal Criminal Defense Lawyers: How We Doin’?

Today I saw “Edwin” in court. Edwin is a longtime criminal-defense lawyer, a former assistant federal PD, and one of my criminal trial advocacy professors at University of Houston law school.

Edwin represented a codefendant in my first jury trial 12 years ago, and his client’s testimony sent my client to prison for 9 years on a federal bank robbery beef. I was reminiscing with Edwin about how his client sold mine up the river when he shook his head and said, “bank robbery cases can’t be won.”

We talked some more, and I told him how the Government had, after my client refused to plead guilty to misprision, dismissed a ten-kilos-and-two-guns case on the eve of trial a couple of months ago. Again Edwin shook his head and said, “that never happens. They never dismiss.”

Now, Edwin is not some assclown who thinks federal court is a good place to turn a quick buck by running every defendant down to the U.S. Attorney’s Office. He’s a smart, talented guy with a lot of federal criminal defense experience. But he was telling me, in effect, “everyone gets convicted.”

I told Edwin about the case manager for one of our local magistrate judges trying to recruit me, as a Spanish-speaking lawyer, to handle cases on the judge’s special illegal-reentry docket. I had bowed out when it was explained to me that, at the first court appearance, “you waive the conflict of interest because the judge is married to the acting U.S. Attorney.” It had occurred to me that there are probably lawyers willing to sign on to a gig that included waiving their clients’ rights in every case as a matter of course.

We seguéd into a discussion of the federal criminal defense bar. I told Edwin that I know there are lawyers who plead their clients out to federal charges without seriously evaluating the evidence or the defenses. He denied that that happens. I told him that I know there are such lawyers because their clients keep coming to me to try to pull their fat out of the fire after they’ve run down to the U.S. Attorney’s Office. I gave Edwin the names of a couple of Houston lawyers who I know to be habitual offenders, and he didn’t know them.

Edwin thinks the cases that need to be pled are being pled, and the cases that need to be tried are being tried. Edwin thinks criminal-defense lawyers in federal court do a good job of protecting their clients’ rights and fighting everything that should be fought.

I don’t. I think that too many lawyers have the “everybody gets convicted anyway”, and that as a result they don’t look closely enough at the evidence and the possible defenses in every case. I think more cases need to be set for trial, more sentencing memoranda need to be filed and, generally, the Government needs to be forced to fight harder to put human beings in boxes.

What do you think? Which of us is right? As a group, how are we—lawyers representing the accused in federal court—doing?

0 responses to “Federal Criminal Defense Lawyers: How We Doin’?”

  1. Given that I believe every felony should be death eligible, including GFB’s 11 oyster related offenses, I would prefer that the government be put to their burden more often. However the 2 or 3 level guideline reduction for acceptance of responsibility has its own lure to people, I would expect any lawyer to be truthful about likely sentences if/when a guilty verdict comes back.

    You must have a special set of clients come through the door given that the numbers I’ve seen for people who go through trial still results in 90%+ conviction rates. Losing that game of chicken must suck.

    • Where did you see those numbers?

      According to Alan Ellis, 90 percent of all cases brought against federal defendants in 2002 resulted in conviction; of the cases that went to trial, acquittals only occurred in about 23 percent of all cases tried. Alan cites the DOJ for the first statistic and the Annual Report of the Administrative Office of the U.S. Courts for the second. I leave the googling to the reader.

      Two or three levels is what it is (are what they are?). Most people pleading guilty try to sing for their supper, and most of those (in my observation and experience) don’t get anything beyond the points for acceptance.

  2. Current federal defense attorney, former federal prosecutor here.

    A defense attorney can, in fact, win a case in trial (and even through motion practice) in federal court. When I’ve won in federal court, it’s been for the usual array of reasons — the government’s case had factual and credibility problems, the AUSA was a rookie and I took advantage of his mistakes, and I framed the issues and told the story better than the government did.

    Naturally, I’ve also lost in federal court. I lost because the facts sucked for my client and the AUSA was experienced and didn’t make major mistakes. I also lost because of the way the sentencing deck is stacked — I got a client acquitted on a 924(c) gun possession count, but because he was convicted of the drug count, it made no difference in the sentence.

    It’s absolutely possible to win in federal court. But it’s also absolutely true that, on average, (1) the feds cherry-pick their cases with a jealous eye towards their win/loss record and therefore are much less likely than the DA to go forward on a marginal case, (2) the feds are generally much better prepared for trial, (3) the feds tend to throw more resources at prosecutions, and have better support than the DAs, and (4) the feds frequently have a more prosecution-sympathetic jury pool than I’d have in the nearest county courthouse.

    Some people claim that AUSAs are better trial lawyers. I think it’s not that simple. AUSAs are better at trials in federal court, with their greater emphasis on paper and formality. I can blitz a DA with a flurry of motions and knock him on his ass; I generally can’t do that with a fed. DAs, on average, have more actual trial experience and are more comfortable dealing with emerging situations and the unexpected at trial — and thrive in the comparatively informal atmosphere of state court, with its occasional “Rules of evidence? What rules of evidence?” attitude. DAs are also, in my experience, more willing to put their reputation and win/loss record on the line by going to trial on a hard case.

    Like you, I’ve encountered defense attorneys who tell clients that no defendant can win in federal court. I don’t tell clients that. I do tell them that, in general, you can’t show up and hope that the government will be unprepared or count on them screwing it up. I also tell that the sentencing incentives to plead out — and especially the sentencing incentives to cooperate — are enormous. Most of my federal clients plead, and in most cases I think it is based on a perfectly rational risk and reward analysis.

    • AUSAs are, as a rule, worse trial lawyers than state prosecutors. They generally don’t try enough cases to keep their tools sharp.

      Aren’t you in CACD? Isn’t it a Wonderland of plea bargaining?

      In most cases in most districts, with very limited charge bargaining, the sentencing incentives to plead out are not enormous, and the chances that cooperation will lead to any benefit are small.

      Still, most federal clients do and should plead, but only after a competent and experienced (by which I mean, “having tried at least several federal criminal trials for the defense”) federal criminal defense lawyer has done due diligence.

      I guess that’s the gist of my complaint: lack of due diligence in the interest of being the first to the U.S. Attorney’s Office.

      • I am/was CACD, though I have done cases in other districts as well.

        Plea bargaining is very inconsistent, depending upon the AUSA, the section chief, and who is in the front office. Sometimes it is very strict DoJ-memo plead-to-the-top-count stuff. Other times they can get more creative.

        But my experience with giving and getting benefits for cooperation is generally pretty good. I recently got a guy down from a 20-year mandatory minimum to about 7.5 years. Post Booker, once you convince the AUSA to give you the 3553 motion, you can run with the ball.

        • Is a 3553 motion a motion under 3553(e)—what the rest of the world calls a 5K1? Different districts (and different prosecutors within a district) have different standards for substantial assistance. Most defendants (2/3?) don’t have what it takes to provide substantial assistance in the eyes of the most literal-minded prosecutors.

          • The 3553 motion is a companion to the 5K1.1 motion — it empowers the judge to go below a mandatory minimum based on substantial assistance (which 5K1.1, by itself, does not)

  3. Even for those clients who end up pleading, there are benefits to running all the traps first. Sometimes you can get a reduction in charges if you are ready to fight — a telephone count, etc. Sometimes you can get lucky and knock things down a notch or two. I’ve even seen clients get a 5K1.1 for pleading, without snitching anyone else out, just because that was what it took to close the case and the prosecutor wanted to quit being nibbled to death by ducks. I had another client get a 5K1.1 for testifying that he knew nothing about the charges against the defendant! Sentence? Time served.

    Federal court is different in some ways, but, basically, if you don’t start out looking for a way to win, you’ll never find one. If you start out expecting to plead, and think going along to get along is the way to have a successful practice, you’ll end up with alot of pleas and never win.

  4. I unfortunately have not gotten to try anything in Federal Court, not for a lack trying. I have found that my willingness to go to trial gets a different response from the AUSA’s than the guys who are none to plead everyone. As a result I have been made some really good offers which my Client had to take, in part because the AUSA’s, in Ohio, don’t really want to try cases that aren’t newsworthy.

  5. You can definitely win in federal court. But it’s really hard for the reasons folks have already said. That said, even when the AUSA has really worked up a case and is ready to paper it, they can forget things, like that they need to prove intent for most crimes.

    That said, I’ve seen crazy stuff in federal court you’d never see in a state court, like DNA evidence in a PWID case with five cop eye witnesses. They have the power of the federal government, they hate losing, and they bring that power only when they think they can score a win. It’s not a great situation.

  6. I agree that many federal lawyers gleefully plead their clients. But, of course, the same is true in state court. What I find difficult in defending federal cases is when the evidence is strong, my role is often limited. In most cases, there is no plea bargaining. So, I’m left with nothing more than my sentencing memo. It can be a rather unrewarding practice.

  7. Maybe he’s just heard the old saw “If you’re charged in state court you need an attorney. If you’re charged in federal court you need a priest” just one too many times.

  8. As both a federal defendant and federal paralegal (I did 10 for Bank Robbery and have done 5 as a federal criminal paralegal.) I can only say that amongst many Federal Defense Attorneys there is a fear of trial. Federal trials tend to be longer and the loss ratio is higher. Undeniably. In florida here they allow discovery to be extensive. They allow attorneys to depose all parties that will be testifying at trial. A florida atty when faced with the bare bones discovery of the feds finds himself handicapped as he is not prepared to take it to the jury. There is also some phobic tendencies in regards to the resources the feds will throw at a case in order to secure a conviction. Much of this is reflected in fee for federal vs state. A robbery case in state will run on average 10k with a good trial attorney. An AV rated might cost 20k. Federal cases start at 25k with the worst attorneys. Thus, the vast majority of your Federal Bank Robbery cases are represented by appointed counsel. Which simply does not pay for that BMW or Rolex. It is simple economics. That leads to one long term handicap for an aspiring defender of the federal defendant…. Bad or weak case law.
    In the end, I have found most appointed federal counsel to be willing to do effective and competent representation… but not superior.
    PS. Not to go hard ass convict. But the Feds really know how to use snitches, even against the moderately guilty. I keep telling the local ACLU when they ask for drug reform ideas… Make it impossible to convict solely on the testimony of a private citizen in drug cases, make the feds produce a duly sworn officer and make him lie under oath.

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