Shoutout to the AUSAs in D.C.

by Jamison Koehler on November 29, 2022
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At a continuing legal education course (CLE) many decades in the past, we had been presented with the pursuing ethical dilemma:  The prosecutor comes across a piece of paper that exculpates the defendant in a pending case.  The prosecutor places the piece of paper into a massive box and then provides that and 100 other packing containers to the defendant’s attorney.

Has the prosecutor complied with his/her obligation to flip around exculpatory evidence under Brady v. Maryland?  

Members at this CLE incorporated three young men in low-cost suits and negative haircuts who had introduced on their own as county prosecutors in Virginia.  All 3 ended up adamant that the prosecutor’s obligations had been achieved:  The exculpatory evidence experienced in truth been turned about to the defense.  The government was underneath no obligation to aid the defense form through the boxes to locate it. 

Just before I or any of the other defense attorneys in the space had a opportunity to object, an Assistant U.S. Lawyer (AUSA) from D.C. weighed in from the back again of the home with his disagreement.  Such a literal interpretation of the prosecutor’s obligation, he pointed out, may have been reliable with the letter of Brady and the prosecutor’s other discovery obligations.  But it was absolutely inconsistent with the spirit.

A legal continuing, he stated, is not a level of competition, and the prosecutor’s intention is not to earn at any value.  Unlike the protection attorney’s purpose, which is to realize the finest feasible outcome for his/her client, the prosecutor’s part is to accomplish the just consequence. 

No one added benefits if an overworked legal protection legal professional misses a essential piece of exculpatory proof. 

My brother-in-legislation, a previous AUSA in D.C., recounts how he and his colleagues employed to action in to help a felony defense attorney who appeared to be battling.  It was not only that they wanted to prevent a conviction from currently being overturned on enchantment since of ineffectiveness of counsel.  They did.  It was also that they did not want to unintentionally convict an innocent human being. 


The trade of views described higher than represents to me the distinction amongst the county prosecutors I applied to deal with in Philadelphia and Virginia and the federal prosecutors I now get the job done with in D.C.  

In Philadelphia, I try to remember standing up coming to my counterpart in the prosecutor’s workplace and looking at the open up file in front of her to locate that she was misrepresenting the details to the court docket.  This was a lady who experienced sat future to me in contracts course all through our initial semester in legislation university. 

The intent of her deliberate misrepresentations was to secure a further couple of days of detention for my shopper. This was the win-at-all price mentality that was fostered by Lynn Abraham, the previous District Lawyer in Philadelphia.  

As for Virginia, I keep in mind currently being lined up hat in hand with other defense lawyers so that we could plead our circumstance for diversion ahead of an more mature prosecutor who treated us with a mix of boredom and disdain.  It was tricky to blame him for currently being so sour.  I would be cranky far too if I had been still undertaking community intoxication instances after 20 years.  


Given this working experience, it was a welcome surprise to commence doing the job with federal prosecutors in D.C.  Handling equally federal and D.C. instances in the District, these are not county prosecutors.  

Looking at how hard it is to get a job as a federal prosecutor, AUSAs are frequently smarter and from superior regulation colleges.  Unlike the county prosecutors who are typically clean out of law school, AUSAs have a tendency to be older attorneys who have labored in other places prior to becoming prosecutors.  This provides maturity and standpoint.  Rotating from one particular division in the U.S. Attorney’s Office to the future, they are attaining working experience and performing meaningful function, not trying to find to make their careers on the backs of individuals charged with small misdemeanors.   

As for their curiosity in attaining the right outcome, not wins, I think of the two AUSAs who were the first to congratulate my client following the courtroom granted my motion for judgment of acquittal.  

I feel of the quite a few AUSAs I have labored with over the earlier 10 or so several years who – pretty much with out exception – have been smart, thoughtful, forthright and pleasurable who seem to specific real worry for defendants and who surface to be most fascinated not in successful but in arriving at the proper end result.  

Every single of you has a distinct purpose in the system.  But you are moral and calculated and you play by the regulations and there is no purpose to be much less than civil when you are going about it.