Thursday, July 16, 2009

The US Attorney Interviews

This post has been updated at the bottom with Vanessa Blum's coverage of the last few interviews.
By Dore Louis:
The day started off with Mark Schnapp. He has a tremendous amount of experience over a very broad career.

Mr. Schnapp immediately noted that the role of a prosecutor should be to strike tough but fair blows. This ended up being a reoccurring theme throughout the day. As it turns out, Judge Gold's Order in the Shaygan case had a large impact on the proceedings -- every candidate was questioned on it, most more than once.

He noted his priorities as USA would be to prosecute 1) National Security matters, 2) Fraud and 3) Political Corruption cases.

A question that was asked of every candidate by the statewide chair was the following:

If you had to issue a letter grade to the office based on integrity and performance what would it be and 2) what are the three biggest problems with the office and how would you correct them?

Mr. Schnapp gave the office an A-, but later reduced it to a B after some tough questioning by Chairman Coffey. He listed the office problems as: 1) Training, 2) Supervision is lacking because the supervisors are spending too much time with large case loads and 3) Recruiting. I am not sure what he meant with 3, like em or not, our US Atty's office gets the top candidates in the country.

Justin Sayfie, who proved to be one of the more aggressive questioners yesterday, kept up the trend by asking a rather pointed question of all of the applicants. He referred to the Gold Order and asked each person if those facts are true, and a AUSA intentionally misled the court or violated a court order, would you do everything in your power to dismiss that person?

Mr. Schnapp first tried to side step the question by saying that he would first conduct an investigation - Sayfie countered by asking him to assume the facts are true and Schnapp finally said that if the investigation revealed the facts to be as given, he would terminate the prosecutors.

Jeff Sloman came next

Interestingly, Mr. Sloman said that one of the first things he would do would be to do away with the Ashcroft memo. I think the point was missed on a number of the committee members who do civil work and don't understand the significance of that policy. Fortunately, Mr. Coffey took a moment to stop and explain its impact to the committee.

Mr. Sloman gave the office a A. He noted that the most serious problem the office has is getting through the "Judge Gold matter" and that the whole thing has been tough on the prosecutors in the office. It was a tough position for him to be in. Clearly, Mr. Sloman has a different take on the Gold Order than many of the committee members do, and he was forced into a lose-lose situation. It was clear he is supportive of all of the prosecutors in the office and at the same time he was being asked to identify problems with the office and give a stance on what discipline may be appropriate given a hypothetical scenario that was being presented to him in terms of "assume the prosecutors did this or that." He did a good job of handling the questions and did not back down from his support of the office as a whole. Mr. Sloman flat out said that integrity and prosecutorial misconduct are not a problem in the office.

I think this may have hurt him with the committee. At one point the chairman asked another candidate a question premised on the statement: "If we think this office needs a shakeup...." To me it seemed clear that many on the committee did have that belief, at least their questions seemed to suggest they do.

Judge Ilona Homes was interesting to watch.

She was very thoughtful in her responses and had a distinct air of authority about her. She gave the office an "incomplete" on the grade question because she is an outsider and didn't feel it was fair to do without knowing more. She was the only candidate that did that.

In response to the "Sayfie Question" she said that if true, the prosecutors should not be in the office, but only after a full investigation has been completed -- in other words, not solely on the basis of the Gold Order.

Judge Holmes was questioned rather bluntly on a couple cases she has handled in Broward that involve accusations of heavy handedness by her from the bench. She did a great job handling the questions and after hearing her explain what happened, I would not expect those issues to play a role in the committee decision. The only caveat would be that there were so many qualified people before the committee that it may be easy for them to hold something against her that they should not otherwise, to make their decision easier.

Judge Trawick was great.

One of the things that really stood out to me was his clear love of our community. Along those lines, his focus would be on public corruption cases, gangs and violent crimes and medicare fraud.

The Judge gave the office a B, and said that he would improve 1) training, 2) the fulfilment of discovery obligations and 3) community relations. Without hesitation, the Judge responded to the Sayfie question by saying he would "absolutely" terminate an AUSA who willfully or intentionally mislead the court or violated a court order.

In my view, Richard Scruggs was one of the most impressive people that was interviewed.

I worked in the same office as the man and didn't have a clue as to any of his qualifications. The were extensive, including a ton of D.C. experience at main justice under the Reno administration.

Mr. Scruggs was strictly business and commanding. He said that under Stanley Marcus the office was an "A," but now it is a "C." he said he would 1) improve training, 2) instill the idea that being a prosecutor is a calling and is about being part of something bigger than winning or loosing, and 3) that he would reverse the "dumbing down" of cases that has gone on over the past 10 years and bring back a focus on big important matters rather than "low hanging" fruit. In response to the Sayfie question, Mr. Scruggs said "absolutely."

He said that he had no political goals in seeking the office and that he thought long and hard about it. He told a funny story about how he consulted with Judge Marcus prior to going forward with his application. The Judge asked him if he remembered the worst case of his career -- he said yes, Yahweh; the Judge then told him that it would be like that every night and day for four years.

Curtis Miner showed himself to be extremely likable and smart as a whip.

He gave the office a B+ and listed its biggest problems as being 1) bottom heavy, 2) that it needs more quality prosecutions and 3) -- I don't think he gave a third.

In response to Charmian Coffey's "shakeup" question, Mr. Miner said that if he concluded there is a problem with the culture or chain of supervision, he would shakeup the office, but that he believed it could be done without using a heavy hand.

It seemed to me that some of the committee members took issue with his lack of management experience. But the guy showed himself to be so capable, I would not count him out.

I came in about half way through Tom Mulvihill's interview.

He fought Mr. Sayfie on his question and refused to concede the facts in the order, but also said that a person who intentionally misleads a court or violates an order should not be an AUSA.

One thing he said that stood out was that the easiest thing to do as an AUSA is to sign an indictment, but that it is much harder to look at the agent on the other side and tell them to shut down their investigation. He seemed to be suggesting that with his experience and the respect he has from law enforcement agencies in the district, he could do that, and bring better more productive cases.

Another thing that he said that kind of made me laugh was that the Federal Rules provide for "extremely broad" discovery in criminal cases. Sorry, but I gotta disagree with you on that one. The Federal Rules of Civil Procedure provide for broad discovery -- the criminal rules do not.

Lilian Sanchez

She did a good job handling the interview and held her ground on the questioning. She gave the office a B- and said that it could use some improved intelligent training -- not just CLE type stuff, but mentoring.

Ms. Sanchez felt that the past few years as a criminal defense lawyer have given her some perspective that she could bring to help the office improve in terms of its relationship with the defense bar and its discovery obligations.

She was also the only person to flat out say "no" to the Sayfie question. She said that she would find out where the breakdown in the office occurred and put policies in place to ensure that it did not happen again. She did note that if an AUSA intentionally violates DOJ policy, she would fire them, but it seemed clear to me that she did not view the hypo offered as that type of situation.

Dick Greggorie

He gave the office a B- and said the problems are 1) too many young prosecutors (they are very bright, but not enough experience), 2) Not enough focus on bringing larger cases, and 3) that there are leadership issues that could be addressed.

He suggested that he saw a problem with the manner in which the Gold Order was handled in the prior administration and said that as US Atty, he would be responsible for the conduct of his AUSAs. If that order had come down during his tenure as US Atty, he would not have "punted" the ball on the decision to appeal, but would have looked at the law and made the decision himself.

Unfortunately I missed the last two interviews of the day.

Overall, it was a very interesting process and removed some of the misgivings I have had in the past when I thought the process might be purely political. It was very apparent that the committee members took their jobs extremely seriously and asked tough and thoughtful questions. You could really tell that they are making a huge effort to put forth the best candidates.

I realize that much of this post focuses on negative points from the interviews -- all I can say is that that is the way the interviews went from my perspective. It seemed to me that the hypothetical idea that the committee might think the office needs a shakeup is not so hypothetical, and many of their questions, and the focus of the interviews were on that point.

On the positive side -- every candidate made clear how much they loved the job as AUSA and the people they worked with. Anybody who has worked with these people in the past should be proud of that fact, because they were given ample opportunity to criticize, and to a person they choose only to discuss how to improve the office.

Hi all, Vanessa Blum here with some brief notes on the final three interviews of the day, starting with former AUSA David Buckner.

Mr. Buckner showed himself to be an incredibly poised and intelligent interviewee. If appointed, it seemed he would take a more hands-on approach than some other candidates. For instance, he said he would try at least one case in his first year. At the same time, he said his experience in private practice at Miami’s Kozyak Tropin and Throckmorton would give him fresh perspective if named U.S. attorney. Of interest, Mr. Buckner revealed that he prepared for appellate arguments in the Cuban spy case, even as his then infant daughter hospitalized. He scored the office at a B+ and said he would emphasize training, white collar prosecutions and public corruption investigations.

Next up, Wilfredo Ferrer, an assistant Dade County attorney and former federal prosecutor. Mr. Ferrer, who spent five years as counsel to Attorney General Janet Reno, told the panel his experience at Main Justice would help him navigate the department’s vast bureaucracy and secure resources for the U.S. attorney’s office. Mr. Ferrer graded the office a “solid B+”, citing high turnover, leadership breakdowns related to the Gold Opinion, and resource shortages as major challenges. With just eight trials under his belt, he addressed concerns about his relative lack of courtroom experience and listed terrorism, fraud, violent crime and public corruption as his top priorities for the office.

The interviews concluded with James Swaim, executive asst. U.S. attorney and a 15-year veteran of the office. In his current post, Mr. Swaim manages administrative functions for the office and oversees community-based initiatives like Weed and Seed and Project Safe Neighborhoods. Mr. Swaim described himself as a low-key leader, “not a ranter and a raver.” “I don’t think that conveys strength,” he said. But outside the office, he said, he would be a forceful advocate for his troops. Mr. Swaim gave the office an A for integrity and a B for performance. When questioned further on the high mark for integrity, James said the actions of three lawyers out of nearly 300 shouldn’t bring down the score for the office as a whole. Though vague regarding his goals, he said he would seek to strengthen mentoring programs and give the U.S. attorney’s office a greater sense of mission.

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