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Facing Multiple Felony Drug Charges - Client Walks Away with a Chance at a Clean Record
Monday, March 29, 2010
We recently managed to dodge a federal indictment for a client and negotiated an outstanding plea for her in state court. What is difficult to understand is that the best lawyering at the federal level comes before the indictment is formally issued. The United States Government has a conviction rate that exceeds 95%. The reason is because the government 1. Goes to painstaking lengths to make sure that it only issues charges in cases that are provable and 2. Has the advantage of not having to turn over discovery to the defendant in a timely fashion. Sometimes, the government can hold off providing its material to the defendant until the moment a witness testifies. The so-called Jenks material is usually the critical information that the defendant’s attorney needs to cross examine witnesses.
Usually, the most effective means to defend a federal case is identifying potential legal issues and winning a pre-trial motion to exclude evidence. This takes a lot of work to gather information and research the finer points of the legal arguments in a short amount of time. If you cannot marshall the resources or make the time to take a federal case, my opinion is that it is best to pass on the case. I have done that on many occasions.
The government does have certain obligations under Federal Rule of Criminal Procedure 16 to provide discovery to the defendant. Keep in mind, you can ask the court to exclude evidence that is not turned over timely. Judges are loathe to order the so-called “death penalty” of exclusion of government evidence when FRCP 16 is violated. However, frame the issue this way: “the question is what caused the violation? If the government had the evidence at its disposal but simply failed to turn it over, why should the government get the benefit of a continuance?” A continuance means a delay. A delay usually serves only to give the government more time to organize its case, prepare its witnesses and sniff out what the possible defenses may be. I am a believer that the sooner you go to trial … the better as a general rule. On the other hand, rules are made to be broken.