L.A. Attorneys Divided on Ashcroft Directive

A recent directive by Atty. Gen. John Ashcroft aimed at limiting prosecutors’ discretion in negotiating plea bargains has aroused the ire of criminal defense lawyers across the country.

Los Angeles is no exception, but seasoned defense lawyers here appear divided over whether the new rules will result in any significant changes locally.

Some say, in effect, “So what’s new?” They note that the U.S. attorney’s office in Los Angeles has a history of hard-nosed plea bargaining, even when more liberal rules were in place throughout the nation.

Others echo the words of veteran criminal defense lawyer Donald Re, who said, “The entire court system will collapse if this new policy is applied strictly.”

In Los Angeles, 97.2% of all federal criminal cases end in guilty pleas before trial, most resolved through plea bargains. Nationally, that rate is about 96%.

If only a fraction of defendants who currently plead guilty were to choose trials because prosecutors had become uncompromising, the courts would be inundated in no time, said Re and other defense lawyers.

But that is not likely to happen, according to other experienced legal practitioners.

“My feeling is that this may be a lot of hoopla,” said defense lawyer Anthony Brooklier, and that when federal prosecutors “get down to cases, cooler heads will prevail.”

George Cardona, chief assistant U.S. attorney in Los Angeles, said Ashcroft’s directive represented no substantive change in policy for the 260 or so federal prosecutors who staff the local office, which is second in size only to the U.S. attorney’s office in Manhattan.

“For many years, we’ve had policies that mesh with the guidelines, essentially because we’re a large office and we needed to ensure consistency in sentencing recommendations,” he said.

The policy change announced by Ashcroft in his Sept. 22 directive erased permissive language written into the U.S. Attorneys’ Manual in 1993 by Janet Reno, attorney general in the Clinton administration. The Reno language allowed prosecutors engaged in plea negotiations to make individualized assessments of the circumstances and seriousness of a crime and whether the sentence would be appropriate.

At the same time, however, Reno left intact a requirement that prosecutors proceed on the most serious “readily provable” charges and not arrive at a plea agreement “that fails to reflect the seriousness of the defendant’s conduct.”

Richard E. Drooyan, who served as chief assistant U.S. attorney in Los Angeles during the Reno years, said that, despite the added flexibility given to line prosecutors, “it was a rare case when they would not charge the most serious, provable offense.”

Ashcroft incorporated that same language in his Sept. 22 directive, saying “federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case except in limited, narrow circumstances.”

Those exceptions include:

* When a defendant agrees to provide “substantial assistance” in an investigation.

* When a U.S. attorney’s office is overburdened with case backlogs.

* When a prosecutor decides that the original charges will be difficult to prove because of witness problems or suppression of evidence.

* When enhancements that could result in a longer sentence remove any incentive for a defendant to plead guilty.

In addition, prosecutors will retain discretion in deciding which crimes are “readily provable.”

As a practical matter, said veteran defense lawyer Joel Levine, “this is not going to mean the end of plea bargaining,” though he added that the Ashcroft memo could have a chilling effect on prosecutors engaged in the give and take of plea negotiations.

Levine, who tries cases around the country, said the federal prosecutor’s office in Los Angeles had “always been rigid when it comes to plea negotiations. Elsewhere, they’re a lot more willing to work with you.”

Defense attorney John Yzurdiaga agreed. “I think there are some districts that are more liberal than Los Angeles.” He mentioned Philadelphia.

Ashcroft may also have had in mind U.S. attorney’s offices in New York and Connecticut. Earlier this year, he caused a stir in the legal community when he overruled prosecutors in those two states who had recommended against seeking the death penalty in a dozen cases.

He followed that with a directive in July ordering all U.S. attorneys to report the names of federal judges who impose punishments more lenient than those recommended under federal sentencing guidelines. The guidelines are set by the U.S. Sentencing Commission, which Congress established in the mid-1980s to bring uniformity to sentencing practices by federal judges.

Judges are required to follow the guidelines unless they determine there are extenuating circumstances that warrant either a more lenient or harsher punishment.

Jan Handzlik, a veteran white-collar criminal defense lawyer based in Los Angeles, said he viewed the most recent Ashcroft directive as “part of a continuing effort by the Department of Justice to assert control and authority over local U.S. attorney’s offices.”

Handzlik said he was particularly disturbed by the attorney general’s disdain for sentences more lenient than the guidelines call for.

“His memo articulates the need for honesty in sentencing,” Handzlik said, “but instead of coming out in support of following the guidelines in their totality, it sends a message to prosecutors that upward enhancements are good and downward departures are bad, even though both are part of the guideline system.”

Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles, said the memo seems to represent a change in tone and attitude -- rather than substance -- when compared to the policies of previous administrations.

“This is clearly designed to clamp down on discretion ... and centralize power in Washington,” she said. “It’s a shot across the bow: Washington will be really unhappy with you if you try to depart.”