When I was an Assistant United States Attorney, there were a few tasks that absolutely nobody wanted. Nobody wanted to appear in front of certain federal judges if they could avoid it, because those judges were pathologically mean or pants-wettingly crazy. Nobody wanted to take a alien smuggling call from the INS, which would invariably call the office and announce that they had taken down a smuggling drop house and captured 60 people and that they wanted 56 of them charged as coyotes and the other four treated as material witness pollos. (Proper response: "I'm sorry, but could you please arrange for someone from a different federal agency to go count again for you?") Nobody wanted to take over a case just before trial, because if someone was palming it off just before trial, it was in lousy shape.
But one thing — mere annoyance that it was — loomed larger and more feared than any of these: ticket Wednesdays.
See, AUSAs like to think they are prosecuting the most important cases in America. But in truth, it's not all civil rights schemes and organized crime and massive Ponzi schemes. It's not even all immigration fraud and bank robbery and one-kilo dope deals. It's also tickets. People get hit with tickets every day on federal property. People roll through the stop sign at the VA. They start campfires where they aren't supposed to in the national parks. They drink on the loading dock at the Social Security Administration building. And, like Andrew Sullivan, sometimes they get caught smoking a joint on federal property. On "ticket Wednesday," which happened about once a month, all those petty cases got dumped in front of some hapless magistrate, and some hapless federal prosecutor got sent downstairs to handle them all. For that morning — on really awful occasions, that whole day — some federal prosecutor who is used to prosecuting big serious federal cases (and developing an epic ego as a result) has to litigate traffic tickets. The results are not pretty.
For Andrew Sullivan, the result was a dismissal. Patrick today wrote a characteristically excellent thinking piece about how the Andrew Sullivan case reveals that justice is not actually equal in America. I'm not going to write anything that profound. I'm going to tell you what prosecuting petty shit in magistrate court looks like.
The first thing you need to know is that federal court is, in most places, much more formal and self-serious than the local criminal court. The expectation of hushed decorum is more pronounced. The facilities are nicer. The judges are a better class of political crony. The prosecutors strain to name-drop Harvard into every conversation rather than, say, BU. The cases are on average far more serious, with heavier penalties. Actual, honest-to-God rules of criminal procedure and evidence are acknowledged in painstaking detail, if not actually followed. Because federal prosecutors have superior resources, wide discretion to take only the cases they want, and significant leisure to build investigations and cases, the cases that wind up in court tend to be on average much stronger. The prosecutors — as a result of a low caseload and generous resources, not as a result of any better work ethic — tend to be better prepared for court. That's their competitive advantage.
Ticket Wednesday changes all of the rules.
Usually the hapless AUSA (often somebody who wasn't at the meeting where this booby prize got handed out) gets the stack of files perhaps a couple of days before. The AUSA is generally expected to prepare cases meticulously. Here, that AUSA — who is used to reading federal agents' reports that are voluminous and legible, if not necessary rational — peers in frustration at the array of tickets, trying to decipher the handwriting of various low-level federal law enforcement officers and trying to figure out what happened based on two sentences on a ticket. Typically the AUSA looks up all of the unfamiliar regulations or statutes cited in the tickets and hopes for the best.
Ticket Wednesday is a cattle call. AUSAs don't generally do cattle calls. Even though 75% of the people cited don't show up, the other 25% is a mob. They all want something. They all have a story or an excuse. The AUSA is given broad authority to settle, but usually no guidance in what factors to use to do so. So prosecutors who are used to dealing with cases with 10-year mandatory minimums are left to figure out what to offer on a $75 ticket. The lack of common sense that the office cultivates begins to emerge at this point.
And the agents! Federal agents and officers will fail to show up for the trials on these infractions and petty offenses. They show up, but admit that the facts bear no relation to the facts set forth in the ticket. They show up, but have no memory of the ticket. Or they show up and ask the prosecutor to dismiss everything. In the 1990s, a few times a week a representative from the Department of Veterans Affairs police would come to our office, ask to see a supervisor, and complain that the AUSAs were not taking the petty offenses and infractions on VA facilities seriously enough. The next week, the same representative would come to Ticket Wednesday to supervise the disposition of the 10 or 15 petty cases from the VA — and suggest dismissing each and every one. Give him this: he had job security. One time, when I was sentenced to Ticket Wednesday, six VA reps showed up. Why so many? One of the VA tickets had been issued to some high-up VA muckity-muck, and they wanted to impress upon me the necessity of dismissing the ticket. If I had not previously seen the representatives ask us to dismiss every ticket, I would have been offended.
This spectacle is only notable because it is happening in federal court. Step into a state traffic court — or even a state criminal court — and you'd see a remarkably similar cattle call, with a remarkably similar array of irrational dismissals and general cluelessness. You'd fall out of your chair in those courts if a judge asked why the government was dismissing a case.
I have little doubt that Andrew Sullivan caught a break because his lawyers made a big to-do and the AUSAs were blog-struck and decided to cut him a break. But in my experience, he may have caught the same break by simply showing up, not being a dick, and not talking about how he was that Andrew Sullivan. This does not diminish Patrick's larger point about preferential treatment in the system. But not every odd result is the result of mendacity — some odd results happen because the culture of the criminal justice system is more Keystone Cops than we would like to admit.
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