Dear Senators Blumenthal and Murphy:
Your recent email invitation for attorneys interested in becoming Connecticut’s U.S. Attorney has crossed my digital desk. While, of course, flattered to be included among those privileged to receive the invitation, I’m afraid I’ll pass for the moment. I will continue to attempt to adequately represent both the justly and unjustly accused as well as my humble talents allow. Thanks, as they say, but no thanks.
Having many years ago served in the U.S. Attorney’s Office, and now called upon occasionally to enter the hallowed halls of Connecticut’s federal court, I do have a view about some qualifications you might want to entertain in nominating the next United States Attorney. I hope you find these suggestions worthy of your consideration.
1) Nominate someone from Connecticut — and of Connecticut: There are plenty of good lawyers in our state. Pick one who has an allegiance to and history in Connecticut. The next U.S. Attorney should be one who has practiced in both our federal and our state courts and who has a respect for both venues. Too often federal prosecutors treat our local courts as unworthy stepchildren. There’s any number of good lawyers in Connecticut who can comfortably navigate their way around a courtroom and can communicate effectively with judges and juries. Lawyers who can be real without being sanctimonious. We don’t need—or want— someone who sees the Office as a junior varsity Southern District of New York.
2) Nominate a lawyer who has represented people: Nominate someone who has once, just once, tried to explain to a mystified defendant the incomprehensible Bingo game called the Federal Sentencing Guidelines. Make it a lawyer who has had to read a nine-page, dense, convoluted plea letter to a person with a high school education, only to end by saying, "Of course, the Judge doesn’t have to go along with this. The possible maximum is 30 years." Choose a lawyer who has had to look the father of four in the eye and try to satisfactorily answer the question, "You mean it’s The United States of America against me?" Choose a lawyer who has had the experience of representing someone who has made a mistake but deserves a break, who has worked to get that break and who has failed.
3) Nominate a lawyer who has lost a trial: Select a lawyer who knows what it’s like to lose a case. And who has had to deal with the consequences of that. Who has had to talk to the overwhelmed spouse and explain why a jury didn’t accept what seemed so obvious. Someone who’s had to walk alone back from the courthouse because his client’s just been convicted and taken into custody.
4) Nominate a lawyer who is familiar with at least the Cliff Notes version of professional etiquette: The good lawyers I know try to do the best they can for their clients. They fight hard. They fight fair. They try to accommodate their adversaries. They recognize the lawyer on the other side has responsibilities to the clients and that the clients can be demanding and unreasonable. Good lawyers understand those pressures. They are not chippy. They try to accommodate. They try to solve problems, not make them. They understand that getting the job done is sometimes easier when you make your adversary look good. Above all, good lawyers never go out of their way to embarrass the other lawyer, especially not in front of the client. They understand and live by the adage, "One day you’re the hammer; the next day you’re the nail".
5) Nominate a lawyer who is tough enough to apply the law against those who deserve it, smart enough to recognize those who don’t and gutsy enough to make that call. The power of the federal courts is truly awesome. The U.S. Attorney’s Office wields a lot of that power. Using that power properly is important to maintaining the core values of our society. When properly exercised, it can help clean up our communities, as that office did a number of years ago in breaking up the violence that was plaguing Church Street South in New Haven. But not every legal misstep requires a felony prosecution, which can ruin a life forever. Select someone with judgment; someone who has the integrity to refuse to say, "My hands are tied"; someone whose resolve to get the "bad guys" is matched by a commitment to not destroy the bumblers and the sad-sacks.
6) Nominate a lawyer who recognizes that cooperating witnesses should be acknowledged for providing exculpatory information as well as inculpatory information. There is a premium in the federal courts for cooperating witnesses. A guilty defendant can advance his or her position by providing information that is of substantial assistance to the prosecution. Traditionally that means helping prosecutors mount cases against other guilty parties by providing information or testifying or both. Judges recognize this in lower sentences for cooperators. Of course there is a risk inherent in this schematic. In trying to help out number one, there may be a temptation to exaggerate, fabricate or lie. Defense lawyers, on a daily basis, spend a lot of time trying to demonstrate to the tried and true that temptation is irrestible.
But a cooperator, a truthful cooperator, who prevents an unworthy prosecution, has provided substantial assistance just as much as the mole who brings down his accomplices. Choose someone who understands that principle and will practice it.
Connecticut has many fine lawyers who meet these qualifications. Seek and ye shall find.
Very truly yours,
William F. Dow III