Federal Prosecutor’s Perspective John d. Pritchard, assistant united states attorney

Disclaimer

The Prosecutor’s Mind Alafair Burke Former prosecutor, author, law professor, and daughter of James Lee Burke

What Prosecutors Think Prosecutors see wrongful convictions as statistical anomalies and bad actors as incredibly uncommon. They also see themselves as ethical attorneys. Confirmation Bias is everywhere. (We win. A lot.) Conviction Rate Guilty pleas “Weak” cases “Reciprocal discovery” “Transfers” tend to go one-way

Negotiating with Prosecutors What to Do: Be candid about what you want. Know your case. Respect the prosecutor’s time. What Not to Do: Be unsure of what your client will accept before negotiating. Appeal to religion “I’ve already punished them.” Forget that in a plea bargain, the state/government needs to get a piece of the bargain.

Getting on the Panel Compensation is $127/hour until January 2016 Panel requires: NC licensure, WDNC bar membership, Admitted to the 4th Circuit Court of Appeals, 2 years federal criminal experience or a minimum of 5 years state law experience, served as counsel in 2 jury trials AND either first or second chair (with significant duties) in 2 federal criminal trials. (This is among other requirements.) http://tinyurl.com/panelwdnc Transitional panel: Established for attorneys who meet the requirements except for federal experience. Allows you to represent clients in supervised release violations, probation violations, and misdemeanors, with opportunity to advance to full panel with certain requirements. May apply at any time, but membership usually reopens in the summer. Expect announcement in May/June. Most recent app: http://tinyurl.com/panelapp2014

Initiation of Criminal Proceedings in Federal Court Indictments Bills of Information Complaints Target Letters

The Magistrate Court Initial Appearance Court Appointed Counsel Government moves to detain or for release on conditions Secured Bond? Preliminary Hearing Detention Hearing: 18 U.S.C. 3142 Rebuttable Presumption cases Otherwise, safety of any other person and community, risk of flight or obstruct justice

NC Sentencing vs. Federal Sentencing Similarities Differences There is a grid! Horizontal & Vertical Axes. Horizontal Axis is for Criminal History. Vertical Axis is for classification of the crime but doesn’t have all the adjustments of the U.S.S.G. Think of every number you see there as a minimum term of incarceration. (More later.) Mandatory. There are no variances/departures.

Other Sentencing Tips Pre-Sentence Reports (PSR) Consolidated vs Consecutive Variances/Departures Typical reduction for cooperation: 3 levels if adjusted offense level is 16 or greater, 2 otherwise Zone A: Probation or Prison Zone B: Probation with intermittent confinement, home confinement, or community confinement, or Prison Zone C: Zone B except one-half of term must be imprisonment Zone D: Prison Prisoners serve 85% of sentence if given more than a year

Substantial Assistance U.S.S.G. 5K1.1 “Upon motion of the government…” Typically filed about a week before sentencing Okay to remind prosecutor “[T]ruthfulness, completeness, and reliability…” How can your client blow it? Also a statutory motion to allow sentencing below mandatory minimum.

CVB Petty offenses, 6 month maximums or $5000 fine What we report NC DWI laws apply Collaterals What to expect in certain cases

Judges Howell: On time is late Documents done beforehand Calls cases M-W-F schedule If interpreter, read it all Reidinger: Objections in plenty of time, preferably a week “Blind Judge Rule”—14 Point Times New Roman font Socratic method Expressed displeasure with preparation of defense attorneys at last federal bar meeting