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The Prosecutor More Powerful Than the Court?

Posted by Russell Babcock | Mar 19, 2018 | 0 Comments

¿El Fiscal Más Poderoso Que La Corte?

The Prosecutor More Powerful Than the Court?


I remember in 1988  the first time I argued a federal case to try to receive a sentence reduction.  To my great surprise, my argument, wasn't to the federal court, but to an anonymous group of case agents, including ICE , the FBI , and the young Assistant United States Attorney assigned to the case.

As a new San Diego criminal defense attorney, I was surprised to learn that the people who would have the most influence over my client's sentence were the executive branch, not the independent judicial branch.

My client and I appeared before this “tribunal,” my client shackled, and the case agents barking out questions at him in a staccato manner much like the sound of a Kalashnikov machine gun.  I wondered, is this the way the system works in Russia, where the accusers take information from the defendant, and  the accusers, not the judge, ultimately determine the sentence?

My client was not “safety valve” eligible so he was a the mercy of the government to provide them with what they consider to be substantial assistance.  Unfortunately, my client was facing a mandatory sentence of ten years.   The only way to break a mandatory sentence of five or ten or twenty years is essentially through the “safety valve” or substantial assistance, also known as snitching. And the government, not the court controls the keys to the sentence reduction.

Most of my clients know very little about who gave them the drugs when they crossed the border from Tijuana into San Ysidoro.  So, they sit at the table and stammer as the case agents accuse them over and over again of lying.  Yes, there is a “fear smell.  I can only describe it as a stench which is a mixture  of the  smell of excrement and sweat—the smell that someone exudes when they know they have made a mistake and are at the mercy of another human being who does not care anything about them other than extracting information from them.

They call these meetings where the accused spill their guts about all of their sins and those who helped them (safety valve) or those who have committed other crimes (substantial assistance)– “de-briefs.”

Not all such “de-briefs” are so intimidating and humiliating, but I have attended several in the United States Attorney's Office for the Southern District where the case agents were so rude that they pounded the table, used vulgar profanity, and  intimidate by having three or four case agents show up to gain the psychological advantage.  I even remember one de-brief when the young Assistant Attorney brought Coca-Colas for everyone except for the defendant, chirping  that “he didn't deserve one” though he was doing everything he could to help the government obtain information about current drug smuggling.

I  attended  a de-brief” the other day where the prosecutor treated the defendant with dignity and respect.  It seems like the federal prosecutors that have been around the longest realize that defendants are human beings, and everyone is capable of making a mistake.  The gentleman prosecutor, though, certainly reminded the defendant that it is the prosecutor who holds the keys to a sentence of less than ten years, not the judge.

In the first case, the defendant received a recommendation for a sentence reduction of three years for seven years to serve, the discretionary number calculated by the governmen.  I argued that the defendant should receive an additional  two years reduction, but the appellate  cases have said that the court's “should give great deference” to the government in both their assessment of safety valve eligibility and reduction for substantial assistance.  What unfortunately happens in many cases with mandatory minimums is that the court's sentences become nothing more than a rubber stamp of the government's “recommendation.”

Even though I lived in Alaska for eight years and many of my colleagues visited Russia, I never did.  Sarah Palin told us she  “

[saw] Russia from her house.”  Unfortunately, with the enactment of the United States Sentencing Guidelines, I can  paraphrase Sarah and say that sometimes too I see Russia [from the courthouse.]

One major difference though still between Russia and the United States is that here you have the right to obtain independent private counsel and not government counsel to represent you. There are a few federal criminal defense attorneys in San Diego who are still true fighters and care about their clients.  I urge you to exercise that right and obtain the best federal criminal defense attorney or lawyer that you can afford.  Many question the high fees of private attorneys , but when you are fighting the United States government, the battle can be long– the government will spend as many resources as possible to convict you .

I would not be writing this blog if private criminal defense didn't still make a difference.  As criminal defense attorneys,  I believe that we , along with a few intrepid judges and the few good remaining prosecutors, are the last bastion of your liberty.  I applaud all of my colleagues who at times have to stand before truculent judges and take unwarranted scoldings.  Yes, there is a double standard in many courts.  I have been chastised at times for being ten minutes late to court when I was held over in jail visiting a client whom I had to wait over one and a half hours to see.  The prosecutors often come and go as they want without any scoldings from the court for being late  because, yes, they are the prosecutors.

As long as I continue to operate my law practice,I  pledge that we will always fight for  you.  Three years may not mean much to some judges or prosecutors. but it may be the difference between getting out of jail in time to see your young child walk and utter those first words.

There are still many good jurists, but as long as we have a political system that appoints judges, our court are only as good as our politics.  As a free society,we are definitely slipping.  But with vigorous advocacy and criminal defense attorneys not afraid to speak up for what is right, there is still hope.  Again, kudos to all who have chosen the career of the defense attorney, a career that requires patience, tolerance, bravery, and a true commitment to justice.

It is the day before Christmas.  I sip my coffee and am doing what I enjoy in addition to praticing law–writing.  I am mindful of every client who is in jail and not with family.  I will continue to make every effort to re-unite my clients with their loved ones because time is our most precious commodity in life.

About the Author

Russell Babcock

Conozca a russell Russell S. Babcock (Founder + Owner) Spanish Speaking Criminal Defense Attorney  (Federal and State Court) The law firm of Russell S. Babcock was formed to provide the highest quality of federal and state criminal defense services at reasonable prices. We are a full service c...


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