29 October 2004


Yes Saturday. I stumble out of bed and drive over to go to the next day of the mandatory federal CLE. I'm not exactly thrilled to be there at 9:00 a.m. on a day when I should be in Kentucky at Centre's homecoming. I sit in the back 'cuz I'm not really all there.

I must admit that Saturday didn't get the scrupulous attention (and copious notes) Friday did. So you're only going to get the things that were interesting enough to stick in my mind.

The lady who came to tell us all about federally approved interpreters was commenting upon social differences between U.S. and Hispanic cultures. She gives as an example the fact that most people in the U.S. have only one surname. She then goes on to explain that Hispanic cultures combine the surname of the father and the surname of the mother. She finished by saying that not having two last names inferred that one only had a mother. The Cuban-American sitting next to me (with only one name) leaned forward to the Argentinian-American sitting in front of me (with only one name): "Did she just call us what I think she called us?" To which the other answered: "Yeah, well I've known I was a bastard for years now."

A little later in the morning a judge who now sits in our district is commending to us the idea of open files and tells us, "When I was the U.S. Attorney for this district I always told my prosecutors that if there was any question as to whether something was required to be turned over under Brady the fact that you are asking the question means it does."

Shortly after the judge finished speaking an attorney stood before us and, as the judge sat two chairs downs from him, expounded upon what we needed to be doing better and said he realized that it was hard to do anything in the federal courts "because the judges are the whores of the prosecutors."

Later in the day we were regaled with the story of a couple of defendants who were (if I'm remembering it all correctly) found not guilty of murder in Virginia. Then they were charged with drug and murder charges in the federal system. They were again found not guilty of murder but guilty of the drug charges. Guess what they were sentenced for? Yep, you got it: they were sentenced for murder.

The low point of the day came when the Managing Assistant US Attorney for the Richmond office came in to speak to us. He starts out by breaking down how many AUSA's are in his office and then transits into a point he really shouldn't have been making: don't destroy your credibility with the prosecutors by filing frivolous motions or fighting unrealistic battles.

We had spent the last day or so being told we aren't doing enough, that we need to argue more motions, that we need to file more paperwork, that there must be something we can do to keep our clients from getting a raw deal, etc. Somebody should have told him that before he started speaking because it was not a crowd which was prepped to be receptive to what he was saying.

To be fair, the point he was trying to make has some merits. In a case with an actual 4th Amendment issue you approach the prosecutor differently than in a case where the prosecution has 20 witnesses, a videotape of the robbery, dye pack ink on your client's clothes, and a confession. Handle all the cases the same way and it is unlikely that prosecutors will listen when you actually have something to say to them. However, that will always be a delicate point to make; even a Defense attorney has to walk on eggshells when he says something like that in a crowd of Defense attorneys.

The prosecutor starts talking about this and grumbling starts in the crowd. He pushes forward and at one point actually says the office keeps track of the Defense attorneys by the motions they have filed; I know that focused my attention. The grumbling got louder and still he pressed on. Finally a lawyer in the back snapped and loudly told the prosecutor he was wrong - that it is not our job to choose who gets a good defense and who does not. Then a lady toward the front told him it was obvious he had never been a Defense attorney because he didn't understand that these motions and filings are often done, even in losing causes because we know the bar complaint will be forthcoming. Down the row someone started heckling in stage whispers. People stopped paying attention and many there was a lot of traffic at the doors. It was bad.

There were other lectures but the remainder were rather mundane compared to that.

[CLE comment] There were some themes which came through:

(1) Judges would like to hear more argument over factors etc.

It's unrealistic under the prosecutorial controlled federal system but I can understand why they'd like us to do some of these things and put a little more control back in their hands. While I would not go so far as the attorney above I've gone as far as to say that it seems the Congress has relegated federal judges to clerks for the prosecution.

(2) More than one non-PD lawyer basically said that the real place to practice law is now in the State systems. Nobody quite said that the federal system is now the bush leagues but the clear implication was that the federal system has become a place where so much power has been shifted into the prosecutor's hands that the law really doesn't matter so much.

Things I noticed:

(1) I had to watch a tape of the last one of these CLE's when I first started taking federal appointments. It was striking how the last time it was run by and the lectures were done by prominent local attorneys and this time it was clearly the PD's show.

(2) I was surprised at the low turnout. This was a mandatory, come or never get another appointed case, CLE. The room was nowhere near full. Now, they were taping it. I missed my college homecoming because this event was scheduled on a bad date (why not do this in February, nothing is going on then). If all sorts of people just didn't come for whatever reason and are allowed to just take the tapes to their office and "watch" them . . .

All in all it wasn't that bad of a CLE. The one put on by the State Bar's criminal section and the ones put on by the criminal bar are better but I got a fair amount of knowledge out of this one. Now if I can just get appointed to another federal case so that I can apply it.

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