One would think that all was chaos and doom in the United States Attorney's offices across the country. The Bush administration has been culling prosecutors, we're told. It's evil. It's shocking. It's ... It's ... It's politics as usual as I see it.
Consider Connecticut, where prosecutorial business is booming and the U.S. Attorney's office is far from moribund. Kevin O'Connor, the top federal prosecutor, has been kicked upstairs. He now splits his time between Washington and Connecticut. The result seems to be an emboldened Connecticut office.
Last year, O'Connor was named a Deputy U.S. Attorney assigned to gang-related prosecutions. In recent weeks, he's reported to have spent time traveling with Alberto Gonzalez. O'Connor did not give up his job as U.S. Attorney for the District of Connecticut. He's kept that job as well.
The Connecticut office appears to be thriving in his absence. In part that is due to the fact that the career prosecutors in that office are top-notch. I won't single anyone out for fear of being perceived as currying favor with men and women deciding the fate of several of my clients. But the office is talented, dedicated and generally lethal in its assessment of who should be prosecuted and why.
But is it becoming too ambitious?
In recent months, the office shows signs of a new boldness, and I cannot help wondering whether that is because it knows it has support in Washington. Consider three prosecutions that test boundaries.
First, in a case involving child pornography, the office is poised to indict a man who has already pleaded guilty to possession of child pornography in the state courts. Double jeopardy? No, of course not. Different sovereigns permit seperate prosecutions. But why would the feds prosecute a man already found guilty? The answer is simple. The state judge let the defendant walk, giving him only probation. Outraged activists demanded prison time. So the U.S. Attorney's Office stepped in. The man now faces at least five years behind bars.
Some might question the wisdom of this prosecution. Why spend the resources relitigating a case? Why second guess the state's determination of what is just? But not this United State's Attorney's Office. It has political clout. Because the crime is revolting, the feds want the man to do time.
Next, consider the prosecution of Greenwich criminal defense lawyer Phil Russell. He's been pinched for a violation of 18 U.S.C. Section 1519, a Sarbanes-Oxley amendment making it a federal offense to alter potential evidence in contemplation of a possible federal proceeding. The case is believed to the first federal prosecution of a lawyer for violation of this act.
Russell destroyed a computer used by a man employed by his client. The man was found looking at child pronography. The destruction of this computer has the veteran defense lawyer looking into the double barrels of a felony conviction and all that entails.
Again, an office confidence of its clout experiments with a new law in such a manner.
Finally, this week, the FBI, under the direction of the United States Attorney's office, virtually shut down the New Haven Police Department as it arrested two detectives for corruption. Simultaneously, it is reported to have sent armed agents into the state courts while court was in session to seize bail bondsmen who were also arrested. Some state court judges are outraged.
The bondsmen were arrested under another novel legal theory. They are said to have corruptly paid police officers who captured defendants who had forfeited bonds.
A bold office does such things, an office confident of its muscle and support in Washington. The national media is paying no attention to the Connecticut office or its golden boy, Kevin O'Connor. But it should. O'Connor challenges the hypothesis that politics govern the hiring and firing of U.S. Attorneys.
O'Connor's office prosecuted a Republican governor during Bush's first term. That governor has been convicted and served time. Connecticut's an outlier. It's office toppled a Republican golden boy. Then the district's U.S. Attorney got a promotion. Then all Hell broke loose in the land of steady habits.