Prosecutors, Institutional Dynamics, And Going Up The Chain

Getting the right result out of prosecutors requires playing a delicate game of office politics.

This week, I come not to bury prosecutors, but to praise them — or at least to sympathize with some of them a little bit.

Most prosecutors, and especially most federal prosecutors, will tell you that their job is not to secure convictions but to do justice. I’m sure most of them actually believe this. And in my experience, I do think most prosecutors think of themselves as doing the right thing.

But they are also human, and just as importantly, they work in offices. And no matter how noble your mission, or how beautiful the seal on the door of your building, we all have to file TPS reports from time to time.

It’s often easy to underestimate the internal dynamics of a prosecutor’s office.  I’m thinking especially about the dynamics involved in deciding not to prosecute — which often involves having one prosecutor overrule another prosecutor.

Let me explain what I mean by that. Anyone who’s done criminal defense work has had the experience of disagreeing vehemently with the decision of a line prosecutor and wanting to take it to the supervisor to see if you can get a more reasonable decision.

And it’s often necessary to do that. But you have to do it the right way. Whenever you disagree with the decision that a line prosecutor is making, it’s always important to tell that prosecutor first what you’d like to have them do. If they won’t do it, only then should you go to the supervisor. Otherwise, both the supervisor and the line prosecutor are going to think that you’re kind of a jerk. (When I was in the D.C. U.S. Attorney’s Office, the defense lawyers who had a reputation for immediately going up the chain had almost no credibility when they did so.)

Think about the dynamic in play when you go to the supervisor. If the supervisor overrules the line prosecutor every time she is contacted, the line prosecutor is going to be demoralized and lose faith in his job. That, in turn, will create more problems that the supervisor will have to solve, and the supervisor doesn’t want that.

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So, as a practical matter, the supervisor only has a limited amount of political capital to spend in this context — no matter how much he may want to reverse more than one decision or think his line prosecutor is out of control. Moreover, it typically takes a lot of effort to work up a case, so the line prosecutor and whatever agent or officer has been involved in pushing the case are going to be upset if all that work turns out to have been wasted because the defense attorney had the supervisor’s ear.

The supervisor actually has a pretty hard job in this respect. On the one hand, she knows that her job is to do justice and that she should not care about the fact that she has to supervise, on a daily basis, the person she’s overruling. On the other hand, she works at an office, and somebody has to write the damn TPS reports.

I’ve seen this dynamic come up in cases where I’ve had to approach a supervisor and try to convince him to overrule the line prosecutor.

Sometimes, it doesn’t work, and you get what amounts to a sort of robotic deference to the line prosecutor. Sometimes, the supervisor will even say something silly, like “I trust my people to make the right decisions, and I’m not going to overrule them.” As if there were some policy to that end, where there is of course emphatically not, nor should there be.

But I’ve also had cases in which the supervisor was thoughtful and smart and wielded the power of the sovereign in an appropriately wary manner. In those cases, the supervisor has heard me out, asked a lot of good questions, and then overruled the line prosecutor’s decision to move forward.

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It’s easy to say that of course supervisors should do that because it’s the right thing to do. But it actually takes a lot of courage. Unlike me, the supervisor is going to have to see the line prosecutor every day, and that line prosecutor will not soon forget that the supervisor overruled him and essentially threw a bunch of work into the trash. It’s hard to overrule people that you see on a daily basis. Plus, the person you overrule today could be promoted above you tomorrow, so you need to be very careful about managing your internal relationships.

If you’re a defense attorney and you’d like to get a supervisor to reverse a line attorney’s decision, the best way to do it is usually to approach politely and not look like you’re big‑footing (even when you are). Be respectful. Assume that any email you send a supervisor will be immediately forwarded to the line assistant, and write it accordingly. If you have a chance to talk to the supervisor, try to frame your arguments in a way that recognizes that the person you’re talking to probably thinks that the person you’re talking about is smart and has good judgment.

Understanding the institutional dynamics of a prosecutor’s office will often get you further than simply assuming that everybody should do the right thing because it’s the right thing to do. Maybe one day, the world will actually work that way. Isn’t it pretty to think so?


Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.