The Federal Criminal Justice System
Dec. 22, 2021
Most individuals charged with federal crimes are new to the federal criminal justice system and have no appreciation for the complexity of the system and the power of the federal government. Since federal criminal proceedings are not televised, it is difficult for the general public to observe for themselves what occurs in federal courtrooms. In this short article, I will attempt to give some general suggestions and observations based upon my experience which may provide assistance to individuals under federal investigation or who are charged in a federal indictment.
As set forth in my site, www.phillipturnerlaw.com, I served as an Assistant United States Attorney in Chicago for approximately seven and one-half years. In that position, I investigated and prosecuted almost every sort of federal offense as well as being involved in various appellate matters. After leaving the United States Attorney’s Office, I have spent the following 23 years as a criminal defense attorney representing individuals in federal criminal matters. Therefore, I have been involved with the federal criminal justice system for approximately 30 years.
My suggestions and observations are as follows: First, always consult competent counsel before making any statement to anyone. The authors of the United States Constitution placed in the Fifth Amendment the right to remain silent. It is wise to exercise the right and consult competent counsel. After consulting with counsel, a decision can be made as to how to proceed.
Second, the federal criminal justice system is not an equal playing field. Representations made by the government carry much more weight with the court than those made by the defense. Defense counsel and the defendant must understand this fact and not become frustrated or upset by what they may perceive as unfairness.
Third, preparation is of the utmost importance. The defendant and his or her counsel must carefully review every aspect of the matter.
Fourth, federal matters are generally complex, move with amazing speed and counsel and the defendant must focus on the matter from the inception. Generally, the volume of discovery materials to review requires careful review by both defense counsel and the defendant. This will require time. The government has teams of attorneys and agents who have reviewed and analyzed the materials for months, if not years, in advance of providing copies of those materials to the defendant. The defendant and his or her attorney must scramble to review, organize, decipher, memorize and investigate large amounts of material very quickly. Generally, federal courts schedule cases for trial on a relatively short schedule. This is not a problem for the government since the government has had years and months to prepare its case prior to the indictment.
When I was an Assistant United States Attorney, my marching orders were to be ready for the trial the day after I had obtained a grand jury indictment. I had the luxury of investigating a matter with a federal grand jury until I was ready to indict the case and ready to try the case. After I had indicted the case, I could give the defense boxes of documents knowing that there would be no way they could master such a large volume of material in a short period of time. I saw many cases where the defense would scramble in an attempt to review large amounts of material in a relatively short period of time. The trial judge would press defense counsel to be ready for trial on a date certain. Defense counsel would have other cases which he or she was handling under the obvious limitation that there are only twenty-four hours in a day.
As a prosecutor, I saw cases where defense counsel obviously did not understand the significance of certain documents until the document was displayed on a screen before the jury. In addition, it must be noted that the defense does not know what a government witness will say until the witness testifies before the jury. Generally, in federal criminal matters, defendants do not have a right to court-ordered depositions of witnesses as is the rule in civil cases. It is indeed ironic that in a civil case where the matter at stake is money, a defendant or plaintiff has more tools to combat his or her adversary than in a federal criminal case where a person’s very life and freedom are at stake. Although a defendant will under certain circumstances receive certain statements made by a witness, the witness's testimony is not limited to what is contained in the statements. Obviously, if the defendant has the resources, he or she can attempt to have defense investigators attempt to interview the witness, but the witness has no obligation to talk to the defense investigators even though the witness may be speaking with federal prosecutors every day.
Fifth, remember that many federal judges are former federal prosecutors who were never defense counsel in a federal criminal case. They were appointed to the federal bench directly from the prosecutor’s office or after a stint in private practice handling primarily civil lawsuits. Some federal judges who have served as defense counsel in federal criminal matters have very limited defense experience. Since they lack extensive experience with the challenges faced by defense counsel, defense requests for trial delays or other relief are not viewed favorably.
Sixth, federal prosecutors want to win. The extent to which the prosecutors want to win was highlighted by the recent federal prosecution of the late Senator Ted Stevens. In summary, Senator Stevens was convicted by a jury only to have the jury’s guilty verdict overturned and the case dismissed as a result of serious misconduct by the federal prosecutors. Fortunately, Senator Stevens had the financial resources to hire diligent attorneys who fought and uncovered the prosecutorial misconduct.
I could continue this list for several pages; however, I think the point is clear. The federal criminal justice is adversarial. The federal prosecutors have every advantage over the defense and they are going to use every resource of the United States of America to convict the defendant. The defendant is in a courtroom of the United States of America, being prosecuted by prosecutors of the United States of America before a judge of the United States of America. There is no doubt that the United States of America is the most powerful entity on this planet. The reality is that the defendant faces this powerful array with only one person at his or her side; defense counsel.