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Jacobs & Dow, LLC

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A New Wind

Beginning with his investiture at the auditorium of the Yale Law School, an institutions with which he has no affiliation but from the prestige of which he wishes to benefit, David C. Fine, the new United States Attorney for the District of Connecticut, has implemented significant changes in the structure and practices of his new office. The swearing in itself was notable, not so much for the venue but for the guest list which, apart from judges and other necessary locals, inexplicably pretermitted Connecticut practitioners and included almost exclusively members of the New York Federal Bar, apparently considered more erudite and refined than its more provincial Connecticut counterpart.

Once invested in office, US Attorney Fine wasted little time in instituting significant administrative changes. Former supervisory attorneys, though not quite finding their desks placed in the hall, have been “reassigned” to rubber gun positions and replaced by younger, less experienced, prosecutors. More experienced Assistant United States Attorneys, schooled in this Districts’ tradition of professionalism, courtesy, and co-operation with their adversaries have been advised that a new day has come and that those traditions which have provided valuable contributions to the ethos of practice in this District are a thing of the past.

Like most new appointees to the position, US Attorney Fine opted to review all charging decisions made by his assistants. This was expected. A detailed approach, a review of past practices, at least at the beginning, is not unusual. But a more dramatic change has been ordered: all those charged will be arrested without warning; defendants will not be allowed to self-surrender, even those whose attorneys have been negotiating pre-indictment resolutions with that office. This means, of course, that the disabled grandmother indicted for social security fraud will be awakened early some cold, sunny day in February by a number of armed agents who will take her into custody and marched into court while her surprised lawyer, who has been trying to resolve the case for months, will receive a call that Mrs. Woebegone is in the federal clink and will soon be looking for release from a magistrate in about an hour.

This “we don’t make appointments with criminals” approach, while catchy as a slogan and an attractive public relations ploy (at least until you are on the other end of the problem), runs contrary to a long tradition of professional etiquette in this jurisdiction. The defense bar, though disorganized, is appropriately distressed. Its first response has been consistent with its history of reacting to adverse changes in the criminal practice-one thinks back to the implementation of the sentencing guidelines— by baying at the moon and grousing in the hallways and back corners of courtrooms. Cooler heads have prevailed, however. It is reported that a group of the State’s most prominent criminal defense attorneys have begun to negotiate modification of Fine’s “you can’t turn ’em in” policy. Recognizing that the policy’s apparent benefit to the Prosecution is the high-profile “perp walk” photo op, the defense group has proposed to Attorney Fine a compromise: the defendants will agree to participate in a perp walk so long as they be allowed to turn themselves in first. As proposed, the details would appear to work like this: the defense attorney would be notified of the opportunity for self surrender and would arrange with the prosecutor the date and time. The next step would require the accused-like our friend Mrs. Woebegone-to report to the appropriate law enforcement agency for initial booking. In the meantime, the US Attorneys Office would contact local media advising of the event and, once the media is assembled, the accused would be handcuffed and paraded into the courthouse and arraigned. The defense attorney and prosecutor would agree upon the pace of the walk so as to assure proper press coverage. Defense attorneys have demanded that the collared raincoat necessary to cover the handcuffs or partially shield the face of the accused must be provided by the US Attorneys Office. This may be a deal breaker. Fine is refusing to budge on this issue.

In the meantime, until this or other modifications can be agreed upon and implemented, the new regime at the US Attorneys Office announced that it will continue to apply the new “tough guy” policy by aggressively taking cases to trial, hoping to improve upon its recent record of not guilty verdicts in a number of high profile cases.