I think one of the best parts about being a prosecutor has to be the press releases.
Think about it: You put a lot of work into a case, and when you win, you get to put out a long statement on Department of Justice letterhead, with the cool little seal at the top, talking about what a great victory you just won. You get to name the defendant. You get to say what you accused them of doing. You get to say what the jury convicted them of.
And most importantly, you get to say how long their jail sentence was, because that’s the real measure of how big a win it was.
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But you know what’s almost as awesome? You can even put out a press release before you convict a person! You can still name them. You can still say what you think they did. You can still say what you think the jury will convict them of. And sure, although you don’t know how much jail they’re actually going to get, you can highlight the statutory maximum for each of the charges, even though you know that the judge is probably just going to follow the sentencing guidelines. (But those numbers tend to be a little less sexy than the statutory maximums.)
Getting to dunk on the defense and then put your finger in its collective chest after you do it is deeply rewarding. They sometimes even let you help write the press release!
Oddly, though, what works for the government doesn’t really work for defense attorneys.
When you’re a defense attorney, it rarely helps your client to do anything but put your victory in your pocket and walk away. You can’t, say, remind the government about the press release they put out after indictment and ask, “So, are you going to pull that press release now that we kicked the crap out of you?” And even if you did, they would probably leave it up anyway.
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You can’t, as I wanted to do more than I can possibly express in a recent case, ask them what the hell they were thinking when they asked for an outrageous sentence in a victimless case, only to have the deeply conservative, law-and-order judge give… probation.
You can’t, as I wanted to do in another case, ask them what they think it feels like to be told that you have to accept their ridiculous plea offer by a date certain or be indicted — and then to find out a year to the day later that they actually decided to walk away. But they never got around to telling your client about that until they realized that, oops, they still had some of his property and probably needed to give it back. You can’t call the supervisor and say something like, “Have you ever lived under the shadow of indictment for a year? Do you have any idea what that feels like? What kind of person does this?”
Although there are rare exceptions, you generally have to take your victory, walk away, and hope that no one will send them work if they ever leave for private practice. (Prosecutors aren’t the only ones with long memories, as it turns out.) You never want to give the government the slightest excuse to go after your guy again, or go harder after a future client because they don’t like what you said about them this time. In short, it almost never benefits your client to do this, so it’s probably something you shouldn’t do.
And I think this has certain institutional costs. It means the government doesn’t actually get much feedback on what it does right and what it does wrong.
Sure, they will get the fact of the acquittal or the fact of a lighter sentence than they asked for, but that’s it. They won’t get a talking-to from a more experienced defense attorney, perhaps one who used to be a prosecutor him- or herself, who tries to explain that that’s not how they should do things.
They won’t, in short, be made to feel shame. And sometimes we should all feel a little shame. Shame humbles us.
But maybe I’m not giving prosecutors enough credit. Maybe when they lose a case or get caught overreaching, they go back to the office, think about what they did wrong, and vow to do it a little differently next time.
Yeah, I’m sure that’s what happens. I’ll look forward to reading about it in the next press release.
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].