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Tuesday, April 22, 2008

L.A.'s top federal prosecutor accused of setting quotas

U.S. attorney says he sets goals. Staff lawyers say they are pressured to file relatively minor cases to boost numbers and funding. The Los Angeles Times by Scott Glover - April 18, 2008

U.S. Atty. Thomas P. O'Brien is facing sharp criticism from prosecutors within his office who say he is pressuring them to file relatively insignificant criminal cases to drive up statistics that make the office eligible for increased federal funding. The prosecutors said O'Brien's effort to increase filings amounts to a quota system in which lawyers face possible discipline and other career consequences if they fail to achieve their numbers. It also detracts from their traditional mission of prosecuting complex, time-consuming cases that local authorities are unable to pursue, they said. O'Brien acknowledged that he had set "performance goals" to reverse years of declining productivity in the Los Angeles office but denied that the goals were quotas.

"This office does not and never will have quotas for its criminal prosecutors," O'Brien said. "To suggest that any attorney in this office must charge a certain number of defendants each year or face discipline is simply not true." He added that his lawyers "are continuing to do some of the biggest, most complex cases in the nation."

Quotas are controversial because they call into question whether prosecutors are motivated by the pursuit of justice or are merely trying to "hit a number," said Daniel Richman, a law professor at Columbia University and a former federal prosecutor in New York. O'Brien and Chief Assistant U.S. Atty. George S. Cardona said they initiated the performance goals last year when Cardona was the acting U.S. attorney and O'Brien was in charge of the office's criminal division. According to several sources, O'Brien spoke passionately at a supervisors' meeting in March 2007 about the need for increased numbers and warned of repercussions for prosecutors who failed to produce. Since then, at least one prosecutor has been transferred against his will and others have received lower performance ratings for failing to meet their numbers, the sources said. O'Brien declined to comment on any individual's case, citing privacy laws regarding personnel issues. But he said productivity is only one of many factors in a person's review. Others include the quality of an employee's work and the employee's ability to interact with law enforcement agencies and court officials.

Increased productivity is important because it can influence funding levels for the office, which are dictated by the Justice Department in Washington, D.C. Because the numbers in Los Angeles have been on the rise, so has the size of the staff. O'Brien estimates that he has hired 60 new prosecutors over the last year and that the office is approaching its full strength of 267 lawyers for the first time in recent memory. The Times spoke with 11 prosecutors from various enforcement sections of the office, which employs about 180 attorneys in its criminal division. The lawyers spoke on condition of anonymity out of fear of reprisals from their superiors. Three former prosecutors who recently left the office also asked to remain anonymous because they were not comfortable speaking publicly about internal matters they were privy to while employed there.

The disgruntled prosecutors in Los Angeles say they are now spending an exorbitant amount of time working on less significant cases -- mail theft, smaller drug offenses and illegal immigration -- to reach quotas. They cited the recent disbanding of the office's public integrity and environmental crimes section, a unit with a history of working on complex police corruption and political corruption cases, as evidence of a shift toward high-volume, low-quality prosecutions. "It's all about the numbers," one prosecutor said. One former supervisor put it this way: "I can't remember how they sugarcoated it, but the feeling around the office was, if you got your quota, then you could work on your real cases without being hassled." The decision to set numeric goals appears to be unprecedented in the recent history of the U.S. attorney's office in Los Angeles. U.S. attorneys going back to the early 1990s said they had no such goals.

The move was part of a broader office restructuring to address a severe staffing shortage and steadily declining productivity, which had fallen 30% or 40% from 2001, O'Brien said. He said he wanted to improve service for crime victims and law enforcement agencies, which had grown accustomed to having their cases rejected because of a lack of resources. "We were literally not even taking cases in the door anymore," O'Brien said. "We were almost becoming irrelevant." Historically, routine criminal cases referred by federal agents were handled by lawyers who were relatively new to the office. In fact, the general crimes section is known as Rookie Row.

Traditionally, new lawyers would file and prosecute such cases for a year or two before graduating to a senior section, such as narcotics, fraud or public corruption, O'Brien said. But because of a hiring freeze between September 2005 and June of last year, the office had essentially run out of rookie lawyers. As a result, O'Brien and Cardona encouraged all lawyers to go after cases both big and small. Numeric goals were set out of concern that some prosecutors might tend to ignore more-routine criminal cases. O'Brien said goals were set for each section of the office based on the average number of defendants charged in previous years. He declined through a spokesman to specify what the goals were then or what they are now.

O'Brien's critics question his motives in pushing for increased productivity. They say he wants higher stats to help his chances of remaining in the politically connected post of U.S. attorney regardless of who wins the presidential election in November. O'Brien denied that accusation. "What I'm trying to do is make this community safer by putting more defendants who commit federal crimes in federal prison," he said. O'Brien also has his backers. They say most of the people complaining about the new goals are "slugs" who need to be held accountable. O'Brien's hard-charging style has "sort of fired up a lot of us," one lawyer said. "Even if there is a quota, so what?" said Greg Staples, a veteran prosecutor in the Santa Ana office who has worked on a string of high-profile cases in recent years. "Doing small cases and big cases at the same time is possible. All we're being told is to produce on a regular basis." Timothy J. Searight, who supervises the narcotics section in the L.A. office, said that he recalls "some grumbling" when the goals were introduced but that most his 18 attorneys "didn't really have much to say about it one way or the other." Searight says he records his prosecutors' individual stats on a board in his office for everyone to see.

"But we're not focused on getting the highest stats possible just to get the highest stats," he said. "We're focused on getting the most crime possible off the streets." The board, he said, helps keep some attorneys focused on that objective. Whether it was through quotas or goals, the message delivered last March had immediate results: Case filings in the months after the meeting shot up dramatically. The total for September, the last month of the fiscal year, was more than triple the number of cases filed in the first month of the year, internal statistics show. There was a particularly dramatic increase in the number of cases filed against immigrants with felony convictions who were caught in the country after having been deported. Known colloquially as "1326 cases" in reference to their designation in the federal penal code, such cases are a favorite for meeting quotas because they require little time and effort, according to the prosecutors interviewed by The Times. In the five months of the fiscal year preceding the March meeting, prosecutors filed an average of 17 such cases per month, statistics show. From the time of that meeting through the end of the fiscal year, the number rose to 65 cases per month.

O'Brien attributed the rise in cases, in part, to the newly announced goals. But he said stepped-up efforts by Immigration and Customs Enforcement and a relatively new unit in the U.S. attorney's office that specialized in handling immigration cases also contributed to the increase. He said he has begun to bring in lawyers on loan from local prosecutors' offices to help handle the load of immigration cases and free up his prosecutors "to work on bigger cases." Meanwhile, O'Brien's critics say some prosecutors who have failed to meet their alleged quotas have been downgraded in their evaluations and were consequently denied bonuses or were paid less than if they'd received top marks.

One veteran prosecutor in the narcotics section spoke out against the alleged practice, saying it was unethical to link the number of defendants a lawyer charged with that lawyer's evaluation because it would give the lawyer a financial incentive to file cases, according to two sources familiar with the situation. The prosecutor was later transferred out of narcotics against his will.

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