When Should Prosecutors Act Like People? A Case Study
A tragedy only made worse by the federal government.
When should prosecutors act like people, instead of like prosecutors? It’s a harder question to answer than you might think.
The Washington Post reported this week on the murder of 21-year-old Grant Dosunmu, who was shot to death Sunday night while sitting in his car in one of the toniest neighborhoods in DC. A graduate of the District’s flagship public high school, Grant grew up in the neighborhood and still lived there with his parents. He was found dead just two blocks from his house.
But it’s not Grant’s murder, as tragic as it was, that got me to thinking about when prosecutors should act like people. It’s what his father, Razak, was going through when that happened and how the government reacted to Grant’s murder.
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A jury in the Eastern District of Virginia, it turns out, recently convicted Razak of two courts of illegal gratuity (after acquitting him of the greater offense of bribery). On November 18th — barely three weeks before his son was murdered — he was sentenced to 15 months’ incarceration. That was more than the four months of home confinement his able federal public defender requested, but far less than the 36-48 months requested by the government.
Razak was due to self-surrender to the Bureau of Prisons on January 3, 2017. His lawyer had filed a motion asking that he be allowed to remain free pending appeal (as Governor Bob McDonnell was permitted to do, over the government’s strenuous objection). The motion presented a fairly compelling case that the agents who interviewed Razak after his arrest had violated his Miranda rights — although, unfortunately, the trial judge had not agreed, so Razak’s only hope was to convince the Fourth Circuit that the judge was wrong.
Motions to remain free pending appeal are only rarely granted, so Razak had an uphill battle ahead of him.
Then Grant was murdered.
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In a motion filed the very next day — and showing for the umpteenth time how dedicated federal public defenders are — Razak’s attorney filed a supplemental motion informing the court of Grant’s murder and asking it to consider that as it weighed whether to allow Razak to stay out pending appeal. In the alternative, the supplemental motion asked to extend Razak’s report date by three weeks.
So what should the prosecutor do in a situation like this? Should he act like a prosecutor or like a person? Let’s take the options in turn.
To a prosecutor, rules matter. Prosecutors love to cite “office policy” when you ask them to change language in a plea agreement or, as in this case, do something like not oppose a request for bond pending appeal.
And there is merit in that position. It’s important to have policies. Ad hocery can lead to special treatment, where some people get favors and others don’t. It is by definition unprincipled, unless the principle is “we consider each issue on its merits” (which, come to think of it, doesn’t actually sound that bad). If justice is blind, then maybe the Department of Justice should be, too.
And yet—what would it mean to think like a person in a case like this?
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To a person, this would be an easy call: a father has just lost his son, and his wife is so distraught that she literally cannot accept the idea that her son is gone:
“She still believes Grant will come home,” he said. “She’s going around the house saying, ‘Come home, come home.’ I keep telling her that Grant isn’t coming home any more.”
Razak is 61 years old. He’s lived in the same house in the same neighborhood since 1981. He has no prior convictions and can’t reasonably be considered a flight risk — unless you count the fact that he (gasp!) emigrated from Nigeria in the late seventies and could conceivably try to flee there. (More on that in a moment.)
If the prosecutor were thinking like a person, he could file a short response to the motion and say something like this:
As the Court knows, the government routinely opposes motions for bond pending appeal and does not believe that Mr. Dosunmu raises a legal issue compelling enough to overcome the presumption that he begin to serve his sentence while his appeal is pending. That said, the undersigned Assistant is also deeply sorry for Mr. Dosunmu’s tragic loss and cannot fathom what he and his family must be going through right now. Accordingly, the government will not oppose Mr. Dosunmu’s motion for bond pending appeal so that Mr. Dosunmu can deal with this tragedy, but it will request that he be placed on electronic monitoring. In the alternative, the government would be willing to agree to a much longer extension of the reporting date than the three weeks requested by Mr. Dosunmu’s attorney in the alternative.
Such a motion would both cite the principle and, at the same time, recognize the extraordinary circumstances of this case. (I defy you, dear ATL readers, to find another first-time white-collar criminal over the age of 60 who has lost a child less than a month before he’s supposed to report to prison.)
So what did the government do?
It opposed the motion on the Miranda merits and devoted only the single following sentence to Grant’s death:
In addition, for the unfortunate reason stated in the defendant’s recently-filed supplemental motion (see Dkt. 95 and Exhibit 1 (newspaper article relating to the defendant’s son)), the government does not oppose the defendant’s alternative request to extend his reporting date until January 24, 2017.
“Unfortunate reason.”
Huh.
No expression of sympathy. No mention of Grant’s name. And not even an acknowledgment of what the “unfortunate reason” actually was. Just… “unfortunate reason.”
And I can’t resist mentioning this gem about whether Razak was a flight risk:
The defendant also assumes [sic] in a conclusory manner that he poses no flight risk because he has satisfied the conditions of his pretrial and post-trial release. The government acknowledges that the defendant continues to satisfy the conditions of his release. The Court, however, should take note of the fact that the defendant was born and raised in Nigeria, and he continues to have family and business ties with his native country.
Or, to put this argument more concisely about an American citizen who’s lived in the same house for 35 years and sent his son to D.C. public schools: “Because immigrant.”
I take back what I said at the beginning of this column. This wasn’t a hard question.
Razak got his three-week extension, but nothing more. He will report to federal prison on January 24th.
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 [email protected].
