Local lawyers blast Ashcroft
Defense lawyers who practice in the federal court for Western Pennsylvania are critical of U.S. Attorney General John Ashcroft’s tough new policy that directs federal prosecutors to pursue the most serious, readily provable charges against defendants.
But legal observers don’t expect the new charging policy to affect the granting of plea bargains, considering that 96 percent of federal cases result in guilty pleas in which one or more defendants cooperate with federal authorities.
“I really don’t think that it’s that earth-shattering,” said defense attorney Warner Mariani, of Pittsburgh. “I don’t see this is going to increase the number of trials. They’re charging what they can prove now.”
Ashcroft’s policy is the latest step in his attempt to bring consistency to the federal justice system. He also has instructed U.S. attorneys to seek the death penalty where applicable, overruling some who would not, and to vigorously oppose sentences that are more lenient than those recommended by federal guidelines.
“I think it’s just another step to take discretion from the prosecutors and vest it in Washington, just like they’re trying to take it from judges. They’re turning us all into clerks,” said defense attorney J. Alan Johnson, who was U.S. Attorney for Western Pennsylvania from 1981-88.
The person in that post now, U.S. Attorney Mary Beth Buchanan, said the policy announced Sept. 22 should have minimal impact on her office, though one new provision will require charges to be filed for any crime committed with a gun. If there are three or more gun offenses, such as in multiple bank robberies, she said federal prosecutors must file gun charges in at least two of them, each carrying mandatory five-year sentences.
Buchanan chairs the Attorney General’s Advisory Committee of U.S. Attorneys that studied the charging practices in federal jurisdictions nationwide, going back to former U.S. Attorney General Dick Thornburgh, who issued the same type of guidance policy.
“We have been following the former Thornburgh guidance, so I don’t know that it will affect our office in that great a detail,” Buchanan said. “The purpose of the new charging guidelines is to make sure there is no uncertainty about a uniform charging policy.”
Buchanan said there are exceptions to the most serious offense edict, including those occasions when a defendant is cooperating with authorities.
“In those circumstances, we can possibly charge a lesser offense, but we are required to inform the judge that we’ve done that, so the judge is fully aware of the facts and circumstances of the investigation,” she said.
The judge must be informed at the time of a plea and again at the sentencing that there were charges that were not filed because of the defendant’s cooperation, she said.
“We don’t always get involved in pre-indictment plea bargaining,” said defense lawyer Stanton Levenson, of Pittsburgh. “Unless you’re cooperating, they’re going to charge you with the most serious offense. I don’t know how that’s going to work.”
“Either you trust your line prosecutors or you don’t. The policy seems very paranoid.”
Mariani said the real deal-killers are enhancements that require mandatory sentences. He said if a mandatory sentence will bring substantial time for a defendant with no prior record, more of them may decide to go to trial.
Johnson said the federal sentencing guidelines “are calculated to eliminate trials. That’s what has happened.”