All but a very few attorneys general have criminal jurisdiction that is shared to varying degrees with elected District Attorneys.  Attorney General offices therefore have criminal divisions that vary in size and expertise. This Chapter written by the Executive Director of NAAG, Chris Toth who is himself a former District Attorney from Indiana, summarizes the various criminal jurisdictions of state attorneys general.

Given the broad jurisdiction to enforce both criminal and civil laws, state attorneys general are sometimes called upon to engage in parallel proceedings that give rise to very specific eithical responsibilities. 

2007 WL 5022411 (Mass.Super.) (Trial Motion, Memorandum and Affidavit) Superior Court of Massachusetts.

Suffolk County

COMMONWEALTH,

v.

POWERS FASTENERS, INC.

No. 07-10802.

December 12, 2007.

Memorandum of Decision and Order on Defendant’s Motion to Dismiss Indictment or to Disqualify Prosecuting Counsel

INTRODUCTION

On July 10, 2006, Milena Del Valle was killed when a piece of the suspended ceiling in the I-90 connector tunnel fell on top of the car in which she was a passenger, The defendant, Powers Fasteners, Inc. (“Powers”) was the supplier of the epoxy used in the ceiling assembly involved in the accident. Immediately after the accident, the Attorney General opened a grand jury investigation into the design, construction, and maintenance of the relevant segment of the project known as the Big Dig. In November 2006, the Commonwealth, Massachusetts Highway Department (“MHD”), and Massachusetts Turnpike Authority brought a civil action for damages against Powers and fifteen other defendants1, alleging breach of contract, negligence, gross negligence, breach of warranty, contractual indemnity, common law indemnity, and a surety claim.2 The Attorney General’s office represents the Commonwealth and MHD. In March 2007, attorney Paul Ware of Goodwin Procter was appointed special assistant attorney general to prosecute the criminal case. The Commonwealth alleges that Powers represented that its Fast Set epoxy could be used for overhead loads although it knew that Fast Set was unsafe for such applications. On August 8, 2007, the grand jury returned one indictment charging Powers with manslaughter. Powers now moves to dismiss the indictment or, in the alternative, to disqualify prosecuting counsel.

Footnotes

1                 Commonwealth et al v. Bechtel Corp. et al, Docket No. SUCV2006-04933. The complaint was served in May 2007, and as of December 3, 2007, not all of the defendants have answered.

DISCUSSION

Powers asserts that the indictment should be dismissed because the Attorney General is barred from prosecuting this case because she has acted as counsel for parties in a civil action depending on the same facts. However, all of the authorities Powers relies on apply to a public prosecutor’s representation of a private party in a civil case who has an interest in a concurrent criminal case. When the Attorney General represents the Commonwealth in parallel criminal and civil cases, she represents the same public interest in both, without the dangers that come with concurrent representation of a private party.

1.  M.G.L. c. 12, § 30 does not prohibit the Attorney General from conducting both the criminal and civil cases.

M.G.L. c. 12, § 30 provides that “[n]o prosecuting officer shall receive any fee or reward from or in behalf of a prosecutor for services in any prosecution or business to which it is his official duty to attend, nor shall he be concerned as counsel or attorney for either party in a civil action depending upon the same facts involved in such prosecution or business.” Powers asserts that the second clause of the statute bars a prosecutor from bringing a civil case based on the same facts as a criminal

case. I disagree. The statute was written at a time when prosecutors also had private clients. They no longer do.3 Section 30 is properly read alongside sections 3 and 10 which provide, respectively, that the Attorney General “shall appear for the commonwealth and for state departments ... in all suits and other civil proceedings in which tile commonwealth is a party or interested      All such suits and proceedings shall be prosecuted or defended by him or under his direction” and “shall take

cognizance of all violations of law ... and shall institute or cause to be instituted such criminal or civil proceedings     as he

may deem to be for the public interest, and shall investigate all matters in which he has reason to believe that there have been such violations.” Section 30 has never been construed to prohibit parallel civil and criminal cases.

2                 The civil claims against Powers are negligence, breach of warranty, and common law indemnity.

As the SJC noted in Commonwealth v. Tabor, 376 Mass. 811, 819 (1978), “[t]he purpose of our statute is to guard the district attorney’s office from private interests and from private influence.” There is no private interest or private influence at work here.

In Commonwealth v. Hogan, 389 Mass. 450, 451 (1983), an attorney was appointed special counsel to a town, and performed an investigation that resulted in his bringing a civil claim for damages on behalf of the town. The same attorney testified at the grand jury in a criminal case depending on the same facts. Id. The defendants moved to dismiss the indictments, alleging that the indictments were “based on evidence which the Commonwealth obtained through the civil actions which were commenced improperly against them.” Id. The court slated that “[p]arallel civil and criminal proceedings are not objectionable per se” and declined to adopt a rule requiring that indictments be dismissed “[i]n the absence of any showing that the civil proceeding improperly contributed to the indictments against these defendants.” Id. at 452-453. Although  Hogan is factually different from the instant case, if the SJC had understood parallel civil and criminal cases to be barred by statute, it could have used Hogan as an opportunity to say so.

Far from being barred, parallel civil and criminal cases are explicitly allowed under the Massachusetts Rules of Professional Conduct. Rule 3.4(h) provides that a lawyer shall not “present, participate in presenting, or threaten to present criminal ...

charges solely to obtain an advantage in a private civil matter.” Comment 6 to that rule explains that “[t]he word ‘private’ has been added to make clear that a government lawyer may pursue criminal or civil enforcement, or both criminal and civil enforcement, remedies available to the government.” Despite Powers’s argument to the contrary, the civil and criminal cases are separate, not unified. Although the two cases both arise from the death of Milena Del Valle and depend on the same facts, they involve different defendants and different claims or charges with different elements, and will each come to a separate resolution. A resolution of the civil case in the Commonwealth’s favor does not depend on obtaining a criminal conviction against Powers.

The Attorney General is “empowered, and perhaps required ... to set a unified and consistent legal policy for the Commonwealth,” and has a “common law duty to represent the public interest.” Feeney v. Commonwealth, 364 Mass. 359, 364-365 (1977). Bringing the parallel criminal and civil cases is consistent with these roles.

2.  Powers’s right to a disinterested prosecutor has not been violated.

Article 12 of the Declaration of Rights requires “that a prosecutor be disinterested in the sense that the prosecutor must not be nor appear to be influenced, in his or her exercise of discretion, either by his or her personal interests or by a person or entity to whom the prosecution of a criminal case may or will bring significant benefits.” Commonwealth v. Ellis, 429 Mass. 362,

372 (1999). Relevant cases address only influence from private parties. Powers asserts that the Attorney General’s involvement in the civil case influenced her decision-making in the criminal case. There is no evidence that this is true.

A crucial difference between this case and the cases cited by Powers is that here, the Attorney General’s interests in the criminal and civil cases are identical. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 790 (1987), a private attorney represented handbag manufacturer Vuitton in a civil case seeking an injunction against counterfeiters. The counterfeiters were permanently enjoined from infringing on Vuitton’s trademark, but continued to do so. Id. at 791. The attorney who represented Vuitton in the civil case was appointed special prosecutor in a criminal contempt case against the counterfeiters. Id. In reversing the convictions, the Supreme Court held that “counsel for a party that is the beneficiary of a court order may not be appointed to undertake contempt prosecutions for alleged violations of that order.” Id. at 790. The

court explained that a prosecutor has an obligation to be impartial, whereas an attorney representing a private client has an obligation to pursue that client’s interest. Id. at 805. When the private client’s interests relate to the criminal case, “the prosecutor may be tempted to bring a tenuously supported prosecution if such a course promises financial or legal rewards  for the private client. Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement  providing benefits to the private client is conditioned on a recommendation against criminal charges.” Id. “The concern that representation of other clients may compromise the prosecutor’s pursuit of the Government’s interest rests on recognition that a prosecutor would owe an ethical duty to those other clients.” Id. at 804. The Attorney General has no such conflict of interest. She represents the people of Massachusetts in both the civil and criminal cases.

Ellis prohibits even the appearance of influence on a prosecutor, and Powers does not present evidence that suggests it Although the Attorney General represents the Commonwealth and MHD in the civil suit, MHD is an arm of the Commonwealth and their interests are the same. Ellis dealt with the question of whether prosecutors were disinterested even though the Attorney General’s insurance fraud division was funded by the private insurance industry pursuant to statutes. 364 Mass. at 363-365. The SJC found that the prosecutors were disinterested, noting that “[a]ssistance in investigations and prosecutions does not translate into control, or ... even the appearance of control.” Id. at 377. The alleged influence came from the private sector. There is no private influence here.

3.  There has not been a Fourteenth Amendment due process violation.

Powers asserts, without citing cases, that a violation of the rule against interested prosecutors is also a violation of federal due process. This court need not reach that issue because, as discussed above, Powers has not shown that the Attorney General is an interested prosecutor here.

It is worth noting that the Supreme Court has not found automatic due process violations where the government brings criminal and civil cases against the same defendant based on the same facts. In United States v. Kordel, 397 U.S. 1, 3-6 (1970), the government pursued a civil case against a corporation on behalf of the FDA. The FDA then notified the corporation that the agency contemplated a criminal action against it. Id. The civil case was settled, and an indictment was returned eight months later. Id. The defendants argued that the government’s conduct “reflected such unfairness and want of consideration for justice as independently to require the reversal of their convictions.” Id. at 11. The Court held that there was no due process violation, noting that it was not a case “where the Government has brought a civil action solely to obtain evidence for its criminal prosecution ...” nor where special circumstances existed that would require reversal of the convictions. Id. at 11-12. Similarly, here, the Attorney General did not bring the civil case solely to obtain evidence for the criminal prosecution. Although the civil complaint was filed quite soon after the accident, perhaps due to statute of limitations concerns, the grand jury investigation was ongoing and discovery in the civil case had not yet begun when the indictment was returned.

4.  Powers has not shown that unauthorized persons were present in the grand jury room.

The presence of an “unauthorized” person before a grand jury will void an indictment. Commonwealth v. Pezzano, 387 Mass. 69, 72-73 (1982). Powers makes much of the fact that Jason Barshak, one of two assistant attorneys general who signed the civil complaint, appeared before the grand jury six times. However, Powers fails to demonstrate that Barshak was “unauthorized” to appear before the grand jury, especially in light of the fact that all of Barshak’s appearances happened after the civil complaint was filed. Mass. R. Crim. P. 5(c) provides that “attorneys for the Commonwealth who are necessary or convenient to the presentation of evidence ... and such other persons who are necessary or convenient to the presentation of evidence may be present while the grand jury is in session.” Barshak was carrying out his duties as assistant attorney general and, as such, was authorized to be in the grand jury room.

Powers alleges that grand jury material was improperly disclosed to unauthorized persons. However, Powers does not support this allegation. There is no evidence of any impropriety as to grand jury proceedings.

5.  There is no need to disqualify the attorney general’s office from prosecuting this case.

Attorney General of New Mexico

GARYK. KING

Attorney General

ALBERT J. LAMA

Chief Deputy Attorney General

NE\V MEXICO ATTORNEY GENERAL'S PARALLEL PROCEEDINGS POLICY

Introduction

This policy applies to parallel civil and criminal proceedings conducted by the New Mexico Attorney General's Office ("AGO"). Parallel proceedings are simultaneous, sequential or overlapping civiL administrative and criminal proceedings against the same individuals or entities for conduct arising out of the same set of facts. The need for a policy sterns from the constitutional and ethical issues raised by parallel proceedings, particularly when information is shared between the criminal and civil sides of the AGO. ¹

Notice to Defendant or Respondent Regarding Parallel Proceedings

AGO staff handling a civil or administrative proceeding are not required to warn or give notice that a parallel criminal proceeding is or may be commenced against the defendant or respondent. However, AGO staff may not affirmatively mislead or create a false impression in an investigation, interview or deposition that there are only administrative, regulatory or civil consequences. Consequently, when appropriate, a defendant or potential defendant in a civil proceeding should be informed that the AGO has the option of pursuing administrative, civil. or criminal enforcement and that the decision to take one type of action does not preclude the office from pursuing any other enforcement action. Appropriate situations include those where the civil attorney is asked about the potential for criminal enforcement, the civil attorney knows that the AGO is contemplating criminal enforcement action against the defendant or witness or there is othern ise a reasonable likeiihood that the AGO will pursue a criminal prosecution.

Typically. challenges to parallel proceedings are based on alleged violations of due process, the Fifth Amendment right against self-incrimination and the Fourth Amendmenf s prohibition against unreasonable searches. For the most part, these challenges are unsuccessful unless there is evidence that the government initiated a civil investigation solely for the purpose of obtaining evidence in a criminal prosecution or affirmatively misrepresented the existence or possibility of a criminal investigation. See United States v. Strinuer, 535 F.3d 929, 936-941 (9^th Cir.). cert. denied. 129 S.Ct. 662 (2008 ).

Although notification about the AGO's general authority to pursue criminal enforcement is permissible, AGO policy precludes AGO staff from either confirming or denying the existence of a criminal investigation in a particular matter.

If the subject of a civil investigation or a witness raises questions concerning self-incrimination, the right to counsel or other legal matters, civil staff should respond that it is inappropriate to offer advice on such matters and that the subject or witness is free to consult with a private attorney.

Exchange of Information

Disclosure from criminal to civil

The ability of AGO staff handling a criminal proceeding to share information with the civil side is limited by the prosecutor's statutory obligation to keep confidential all matters occurring before a grand jury. Confidential grand jury materials that may not be disclosed to civil staff include those that reveal what occurred before the grand jury and records that have been subpoenaed by the grand jury. The limitation does not apply to information obtained from a source independent of a grand jury proceeding, including information obtained from witnesses before they testify before a grand jury, material produced without a subpoena and information obtained through an independent investigation.

To facilitate the sharing of information among AGO staff involved in parallel proceedings, the following procedures should be followed:

1.                  When appropriate, other avenues of information gathering, such as search warrants and witness interviews, should be utilized in addition to grand jury subpoenas.

2.                   Prior to presentation of a matter to a grand jury, investigators and prosecutors should summarize or segregate evidence that has been obtained from a source independent of the grand jury process, including witness interviews, information obtained through an independent investigation and materials produced without a subpoena.

to

Information obtained in a civil investigation generally may be shared with criminal staff That information may properly be used in a criminal  prosecution  if it was obtained  for a good faith civil  or administrative purpose and the defendant was not misled about the government's intentions. To avoid any abuse or perceived abuse of the discovery process, the administrative process or civil discovery may not be used as a pretext for a criminal investigation and criminal staff should not attempt to direct or influence the conduct of discovery in the civil proceeding.

Secretary of state accused of fraud, money laundering

By Deborah Baker / Journal Staff Writer UPDATED: Friday, August 28, 2015 at 11:09 pm

PUBLISHED: Friday, August 28, 2015 at 4:13 pm

Secretary of State Dianna Duran during an interview in her office in Santa Fe on Tuesday, August 19, 2014. (Eddie Moore/Albuquerque Journal)

Copyright © 2015 Albuquerque Journal

SANTA FE – Secretary of State Dianna Duran was charged Friday in state District Court with fraud, embezzlement, money laundering and other crimes related to allegedly converting thousands of dollars in campaign contributions to her personal use in 2013 and 2014.

At the same time, it appears she was frequenting casinos across the state and withdrawing hundreds of thousands of dollars at them from accounts in her name.

1

BALDERAS: AG alleging 64 violations

Democratic Attorney General Hector Balderas alleged 64 violations in a criminal complaint and information that said Duran shifted money between campaign and personal accounts and withdrew sums at eight casinos.

Duran is a Republican in her second term; she was elected in 2010 and re-elected last year. The secretary of state, who oversees elections and campaign finance, has the role of state government ethics regulator.

The complaint says Duran violated “the ethical principles of public service” by converting intended campaign contributions to her own use.

Duran’s lawyer, Erlinda Johnson, issued a statement saying “we have identified some serious potential violations of law by the New Mexico Attorney General’s Office, in conducting the investigation.

“We hope this is not a politically motivated case and that the attorney general is not engaging in a selective prosecution of a political adversary. We ask the public to not jump to conclusions and we look forward to addressing the allegations in Court,” she said.

Preliminary hearing

Balderas’ office did not provide any information beyond what was in the filed documents.

“Our office will proceed transparently by way of preliminary hearing,” Balderas’ spokesman,

James Hallinan, said in a statement. “Through that process, all facts supporting these allegations will be presented.”

The alleged crimes – ranging from petty misdemeanors to third-degree felonies – mainly occurred in 2013 and 2014.

They also include violations of campaign laws, tampering with public records, conspiracy and a Governmental Conduct Act violation, according to the complaint.

Republican Gov. Susana Martinez said she had spoken to Balderas about the charges.

“These allegations are deeply troubling and concerning, and all relevant state agencies have and will continue to assist the attorney general throughout the process,” she said. “It’s important that New Mexicans understand that no one is above the law and that every New Mexican is

treated equally under our system.”

Confidential tip

According to the complaint, the AG’s office in July 2014 received a confidential tip that numerous cash deposits were made into Duran’s bank accounts that “appeared to be

incongruent when compared to known sources of income.”

An investigation revealed a pattern of large amounts of cash and campaign contributions deposited into personal and campaign accounts, the subsequent transfer of funds between the accounts, and “large debits for cash expenditures” at casinos throughout the state, the complaint said.

According to the complaint, Duran withdrew a total of $147,641 in 2013 and $282,807 in 2014 at Buffalo Thunder Casino, Camel Rock Casino, Casino Apache, Inn of the Mountain Gods, Ohkay Casino, Ruidoso Downs, San Felipe Casino and Sandia Casino from her personal accounts.

The largest chunks of the withdrawals, totaling $95,700 in 2013 and $150,256 in 2014, were at Sandia Casino.

The complaint outlines more than a dozen alleged incidents of misappropriation and misreporting of campaign contributions.

In one instance, for example, a $500 check to her campaign from lobbying firm Shoats and Weaks Inc., given after the November 2014 election, was allegedly put into Duran’s personal checking account as part of a deposit to cover an overdrawn balance.

Some other examples from the complaint:

·         In the earliest of the alleged incidents, the complaint says Duran wrote a $600 check in March 2010 to Sean Davis of Tularosa and listed it on her campaign expenditures as being for “Equipment & work on campaign.” Davis told investigators he hadn’t worked on the campaign, didn’t get the money and didn’t endorse the check.

·         In November 2014, a check was issued from Duran’s campaign account to her husband, Leo Barraza, for $2,850 for “reimbursement,” according to the complaint, but was not reported on her campaign expenditure report. The check was deposited in their joint checking account the same day a withdrawal of $4,500 was debited from the account at Sandia Casino. “Without the deposit of $2,850.00, the withdrawal at Sandia Casino could not have been realized without overdrawing the account,” the complaint said.

·         The complaint says a $5,200 contribution from oil and gas company Mack Energy Corporation in August 2014 was reported as a $2,900 contribution on Duran’s campaign finance reports. The effect of the misreported contribution was to keep the total reported contributions from the company to Duran that year at $10,400, rather than the $12,700 it actually gave, according to the complaint. The $10,400 figure is the maximum a statewide candidate can take from a contributor.

Officials at odds

There has been a rift in recent months between Duran and the Democratic attorney general over campaign finance reporting and enforcement.

The two formed a task force in February to study the issue. It met twice, and Balderas issued final recommendations on his own, including mandatory fines for violating the Campaign Reporting Act. He also said he was concerned about lack of enforcement in the Secretary of State’s office.

Duran, in turn, accused Balderas of filing three late campaign finance reports a few years ago. She was wrong about two of them – which was blamed on a staffer – and Balderas said the errors pointed up flaws in her office’s operation.

Attorney general cuts ties with secretary of state's office - SFGate                       http://www.sfgate.com/news/crime/article/Attorney-general-cuts-ties-wit...

http://www.sfgate.com/news/crime/article/Attorney-general-cuts-ties-with-secretary-of-6540172.php

Updated 10:15 am, Wednesday, September 30, 2015

ALBUQUERQUE, N.M. (AP) — The

state attorney general's office says it will no longer provide Secretary of State Dianna Duran's office with legal advice or handle campaign finance complaints referred by Duran's office.

Attorney General Hector Balderas in a letter Tuesday said Duran's office would have to find alternative legal representation while the criminal case against Duran is pending, KOB-TV

reports (http://bit.ly/1OGeiRg). Duran is facing fraud, embezzlement and money laundering charges.

"Although not made lightly, I believe that the decision to discontinue our legal representation of the SOS while the criminal proceedings are pending will facilitate the operations of both our offices," the letter states.

The attorney general represents state entities in legal battles and handles campaign finance investigations referred by the secretary of state's office. Balderas returned 31 campaign finance civil complaints to Duran's office and recommended that the cases now be referred to district attorneys.

"In light of the ongoing criminal complaint, I believe the most prudent course is to return the 31 referred matters to the SOS," Balderas wrote. "Although I understand this may cause some inconvenience for your office, the (Campaign Reporting) Act authorizes the SOS to refer these and other civil matters for enforcement to the district attorneys, as well as to the OAG."

Attorney general cuts ties with secretary of state's office - SFGate                       http://www.sfgate.com/news/crime/article/Attorney-general-cuts-ties-wit...

The attorney general filed a 64-count complaint against Duran Aug. 28, alleging Duran funneled campaign donations into personal accounts and falsified campaign finance reports. She has also been accused of withdrawing large sums of money while at casinos around the state.

In a statement sent by Duran's spokesman, Ken Ortiz, Duran called the latest move by the attorney general's office political.

"The Attorney General has created a 'conflict of convenience.' Although he believes there is no conflict in prosecuting his own client, the Secretary of State, the Attorney General now believes he has a conflict with investigating other candidates and political committees who may be his political friends."

Information from: KOB-TV, http://www.kob.com

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Secretary of State Dianna Duran cuts her losses                                                                                                        http://www.currentargus.com/story/opinion/columnists/2015/10/27/secre...

Secretary of State Dianna Duran cuts her loss

(Photo: Courtesy Photo)

It had to have been a stressful time for Dianna Duran.

Almost week earlier, as New Mexico’s then Secretary of State, she had annou hearings on a batch of self-advertised “reforms” in the rules governing state e

The hearings would be public and were to take place on Friday, Oct. 23, even charges for such felonious conduct as embezzlement, money laundering and

Onlookers were baffled. How could anyone facing charges of such magnitude impeachment by the state House of Representatives--make bold to hold heari time when many New Mexicans had reasons to question her integrity?

Was this just a cheeky stunt of some sort? Or was it measure of how clueless never know the entire story. What we do know now is that there would be no h

least not in the tenure of Dianna Duran as New Mexico Secretary of State.

Around midnight on the evening of Thursday, Oct. 22, Duran dispatched a letter to Gov. Susanna Martinez submitting h State. The following morning, shortly after 8:30, she and her attorney Erlinda Johnson were in the courtroom of Judge T entered into a plea agreement on six of the 65 charges against her—two of which are felonies, four misdemeanors.

Prosecutors in the case, led by state Attorney General Hector Balderas, accepted the agreement, but the case is not ov

On Dec. 14 Duran and presumably attorney Erlinda Johnson will be back in Judge Ellington’s courtroom, where the form sentencing for the crimes to which she has pled guilty.

The two felony crimes could land her in prison, which she would like to avoid, of course. What’s more, Attorney Genera amenable to accepting a pardon in lieu of jail time.

Nonetheless it is within the judge’s authority to impose a prison term for Duran.

Lurking behind the criminal conduct to which Dianna Duran has confessed is a sickness that may have figured into her f agreement, the former secretary is required to seek professional help in coming to grips with an apparent predilection to campaign contributions she is accused of having illegally diverted to personal rather than political use were by all accou sizeable gambling losses at sundry local casinos.

As one wag coyly put it, “It’s as though the casinos became her banks for laundering money.

What we have here, of course, is a warning made familiar by gambling opponents and critics back in the 1980s when th with authorizing tribal casinos in New Mexico. Who knew that in time the affliction would so publicly visit itself on a high

AG Jennings tells prosecutors to seek lesser prison sentences for some crimes

Xerxes Wilson, Delaware News Journal Published 12:22 p.m. ET Feb. 18, 2019 | Updated 5:53 p.m. ET Feb. 19, 2019

Consider alternatives to prison when fashioning plea agreements. Avoid recommending jail time for those who violate technical aspects of their probation. For crimes with a suggested sentence of less than a year, ask for probation. Support expungements for those previously convicted of marijuana possession or other acts that are no longer crimes.

These are a few of the new marching orders for prosecutors in the Delaware Department of Justice, codified in a memo unveiled Monday by Attorney General Kathy Jennings. The memo sets out "presumptive guidelines" for the 200 or so prosecutors pursuing criminal cases in Delaware.

"Many of these steps codify the already excellent work that prosecutors do each and every day. Others represent a departure from the past," Jennings said. "All of these steps are just, necessary and true to our highest values."

The goal of the seven-page memo is to reduce the impact on non-violent and first-time offenders more in need of rehabilitation and "second chances" in order to focus more on the criminals driving a "significant proportion of serious and violent crime," the document states.

Kathy Jennings talks to an attendee after a forum of candidates during her campaign for Attorney General last year.

Kathy Jennings talks to an attendee after a forum of candidates during her campaign for Attorney General last year. (Photo11: William Bretzger, The News Journal)

Jennings noted "overabundant and redundant" minimum mandatory sentences have disproportionally impacted the poor and "traditionally underrepresented" and often lead to them spending a long time in jail or re-offending once released.

The memo, posted in full at the bottom of this story, likens the changes to adaptation and said it is not condemnation of past prosecutors or all their "ideologies and philosophies."

"For too many years, Delaware’s criminal prosecution system has focused on tough charging practices and long prison terms," said Kathleen MacRae, ACLU of Delaware's executive director.

McRae said the changes are a step toward making the system more "fair and just."

Discouragement of so-called charge stacking is an important change she said. In some cases, a person may be charged with multiple crimes that carry a minimum mandatory sentence for a single bad act.

Prosecutors are then able to leverage the potential sentence for those multiple crimes to pressure the defendant to take a plea deal, she said. The memo discourages these practices and instructs prosecutors to not charge for multiple crimes when one can account for the circumstances of the act.

"True justice requires charges to match the seriousness of the crime," McRae said.

Delaware Center for Justice Policy Director Katherine Parker said the memo's instruction not to seek prison time or the revocation of driving privileges for those who can't pay civil fines will have an impact on the most vulnerable.

"This type of leadership reflects a profound understanding of the impact that these practices have on the most vulnerable in our community," Parker said.

Jennings became the top official at Delaware's Department of Justice in January. She was elected following a rare Democratic primary that featured four candidates largely campaigning with a similar pledge to jail fewer people and more fairly administer justice.

Those ideas are part of a rethinking on both the political left and right of the efficiency and effectiveness of prison time and what justice looks like.

Prosecutors are an important cog in the justice machine. They decide which cases to pursue and which charges would be most fair to pursue in those cases. They administer plea deals, interact with witnesses to crimes and recommend a sentence when a conviction is secured.

The outcome of these decisions bears on how many people are jailed and for how long, what tools they have available to enjoy a productive life and more generally how the public perceives the fairness of the justice system.

The memo is the first step in Jennings publicizing changes she wants to make as the state's top prosecutor. She is expected to announce a list of legislative reforms she plans to lobby for in Dover in the coming months.

The memo touches on changes to plea agreements, charging, sentence recommendations, probation, prosecution of children and the DOJ's role administering expungements and commutations.

Here are a few takeaways:

Regarding pretrial decisions:

The memo also seeks to lower barriers for criminals with drug problems and mental illnesses to get meaningful rehabilitation. It instructs prosecutors to divert "low-level" offenders in these categories away from probation and jail and toward treatment programs.

Prosecutors are also to consider "alternatives to prison" like house arrest when crafting plea deals, the memo states.

It encourages police to only issue civil fines for marijuana possession and ends the practice of adding a charge for misdemeanor possession of marijuana when someone banned from possessing a gun is found with a firearm and pot. Now, they will only be hit with the firearm charge, the memo states.

CRIMINAL JUSTICE: Sentenced to life in prison for burglary, Wilmington woman gets second chance CRIMINAL JUSTICE: Wilmington Trust execs will not report to prison on Tuesday

LETTERS TO THE EDITOR: Empathy needed for those in prison

Regarding bail, the DOJ will request those charged with misdemeanors be released without having to pay bail unless they are charged with crimes involving violence, child or domestic victims.

Prosecution of children accused of crimes is particularly relevant for Wilmington, where teens have been arrested and jailed on gang participation charges as well as subsequent violations like no-contact orders with their codefendants and friends.

Jennings' memo states that adult charges will not be pursued for children unless approved by the state prosecutor. In these cases, deputies will only seek pre-trial jail when there are no safer alternatives. The office will also expand the use of civil citations, which are fines.

Regarding sentencing and probation:

For crimes that do not involve a minimum mandatory sentence, judges have discretion over how much jail or probation a defendant gets.

Prosecutors, however, make a recommendation. Jennings' memo states that approval from the state prosecutor is required to seek a prison sentence above 20 years. For crimes where the recommended sentence is under one year, deputies should seek probation or house arrest, the memo states.

Delaware recently reformed its habitual offender law, also known as the three strikes law, to allow some who were doing life sentences for drug crimes and violent felonies a second chance.

The administration of the current habitual offender law still creates controversy. Jennings' memo states that prosecutors are to get approval before moving to declare a defendant a habitual offender.

State Prosecutor A.J. Roop said the purpose is to have a conversation about the specific individual and case to see if such tactics are just.

Prosecutors will craft sentence recommendations that consider both the victims need for justice and the defendants need for rehabilitation and reintegration into society, the memo states.

Probation recommendations should also be limited to one year, unless the crime involved is a violent felony or "top-tier" drug charge.

Likewise, prosecutors are to avoid prison sentences for technical parole violations like a missed curfew. As well, prosecutors are not to recommend zero-tolerance probation conditions for drug and alcohol addiction.

Deputies will work against the issuance of arrest warrants or revocation of a person's drivers license when they are without means and fail to pay a fine -- that includes all defendants represented by a public defender.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.

Read the full memo here:

KATHLEEN JENNINGS

ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

820 NORTH FRENCH STREET WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400

CRIMINAL DIVISION (302) 577-8500

FRAUD DIVISION (302) 577-8600

FAX (302) 577-2610

MEMO

To: Deputy Attorneys General and Staff From: Attorney General Kathleen Jennings

Re: Fairness and Equality in the Criminal Justice System: Internal Policies Date: February 15, 2019

The Delaware Department of Justice (DOJ) remains committed to making the criminal justice system fair, equal, and accessible to every person regardless of race, income or ZIP code. Prosecutors have a unique and powerful role in how the system operates. Unlike any other attorneys, we are ethically bound to consider and protect the rights and needs of all Delawareans—victims, the public, and the accused. Our overarching responsibility is to do justice; that is, to do the right thing in every action we take. Prosecutors have the power to charge or not to charge; to choose which charges to bring; to offer a plea or not, and to recommend a sentence. These decisions substantially impact peoples’ lives, their sense of justice, their liberty, their livelihood, and their families, in addition to the community’s fundamental faith in the system. These are decisions you make every day, often with limited resources, and they are decisions I made throughout my career as a Deputy.

Many of you, and the public, are frustrated by aspects of the criminal justice system. Overabundant and redundant minimum mandatory sentences, laws that disproportionately impact traditionally underrepresented, economically challenged people, and the collateral consequences of criminal records have contributed to the high rates of incarceration and recidivism that lead to us seeing many of the same defendants over and over again. We cannot control what other agencies or stakeholders do, but we can change our practices and policies to reverse this trend and increase fairness and proportionality in the system, while at the same time improving public safety and restoring community trust.

Make no mistake: I know you work tirelessly, night and day, to protect us and to do justice. This change in direction and focus is not a condemnation of all

ideologies and philosophies of the past, or the fine public servants who were dedicated to those ideals. Indeed, I’ve spent the majority of my career here. Rather, this is a reaction to the realities of the present. We must adapt. The problematic issues are systemic and not attributable to the outstanding individuals who work here, but we are uniquely positioned to help.

These changes are designed to call more attention and resources to be devoted to the offenders who are driving a significant proportion of serious and violent crime, while reducing the impact on low-level, non-violent or first time- offenders for whom rehabilitation and second chances should be the goal.

DOJ Internal Measures

An internal working group of experienced prosecutors from all three counties examined and recommended ways to change our practices while continuing to keep Delawareans safe. I am grateful for their hard work, over and above their caseload. I have considered and incorporated several recommendations. Effective immediately, the Department of Justice and its Deputies and staff will observe the following presumptive guidelines in criminal cases:

1.           Charging.

For all cases charged from this day forward:

a)     We will adopt an office-wide presumption not to charge multiple minimum mandatory crimes when one crime accounts for the facts and circumstances of an event. Deputies will focus on limiting the number of charges in an indictment to those that most accurately reflect the misconduct and are most provable.

b)    Deputies will only move to declare a defendant a habitual offender with State Prosecutor approval. We should not file a habitual offender petition unless we are seeking to go above a statutory maximum at sentencing out of concern for public safety.

c)     Addiction and mental illness drive a substantial number of crimes in Delaware. We must support alternatives to criminalizing addiction and mental illness by diverting people who commit low-level crimes to evidence-based treatment programs and away from the system altogether.

d)    We must never impose a zero-tolerance condition upon a person seeking drug, alcohol or mental health treatment, because the path to rehabilitation is never linear. Where there is sufficient evidence to charge, Deputies will utilize discretion to divert more people from the criminal justice system, when it is safe to do so, based upon their need for addiction services and/or mental health treatment. Absent extraordinary circumstances, Deputies should not require an admission of guilt as a prerequisite to entry into court- run diversion programs.1

e)     We will continue to encourage alternatives to prosecution for misdemeanor possession of marijuana or paraphernalia charges related to marijuana possession. We will encourage police agencies to expand the use of civil citations of marijuana possession in lieu of criminal arrest.

f)      Unless approved by the State Prosecutor, we will not prosecute a person for simultaneously possessing a legally owned firearm and a misdemeanor amount of marijuana. Persons prohibited from owning a firearm will be charged with illegal possession of a firearm.

g)    We will encourage alternatives to prosecution for Prostitution. We will be cognizant of the potential for accused sex workers to be victims of sex trafficking and always make an appropriate law enforcement referral when we suspect a defendant is a victim of human trafficking. We will also refer people charged with Prostitution to specialized treatment courts designed to assist them.

2.           Bail.

Although the Courts determine the bail system, I will transmit to the judiciary our strong preferences, including the following:

a)     DOJ’s presumptive bail request for misdemeanors will be “release on own recognizance” (ROR) or unsecured bail, with the exception of crimes involving child victims, violence, and domestic violence.

b)    Deputies are encouraged to seek a reduction of bail for defendants held solely on misdemeanor offenses whose cases do not resolve during a

1 Where critical evidence or witnesses may become unavailable if trial is delayed, a conditional guilty plea is warranted.

scheduled calendar (unless the offenses involve child victims, violence, or domestic violence).

Further, I am sending a letter to the Courts requesting that all currently held defendants who meet the above criteria be brought to court for a review of their conditions as soon as possible.

3.           Pleas.

When fashioning plea offers and resolutions:

a)     Deputies will continue to take into account harm to the victim and the victim’s need for justice.

b)    Deputies will continue to take defendant’s rehabilitative needs and background into account and encourage defense counsel and others to provide information on those needs. This will include relying on mental health or drug treatment needs before pleading or recommending a prison sentence. I have already encouraged this with defense attorneys and will continue to do so.

c)     When appropriate, Deputies will consider alternatives to prison that limit collateral consequences while accounting for public safety (e.g., house arrest).

d)    Deputies will continue to consider whether a person can safely reside in a community-based residential program, rather than in prison.

e)     Deputies will avoid conditioning a plea on the timing of a motion hearing in victimless crimes unless there is an appropriate reason, such as a vulnerable victim.

f)      Deputies will encourage judicial discretion by leaving sentence recommendations “open” in plea agreements when appropriate.

4.           Sentencing.

a)     Authorization from the State Prosecutor is required when seeking a prison sentence above 20 years in a case other than Murder First Degree, Murder Second Degree, Manslaughter, Sex Offenses, and Child Abuse.

b)    In routine misdemeanor or felony cases, Deputies are encouraged to recommend sentences at the lower end of the SENTAC Guideline range, unless aggravating circumstances outweigh mitigating circumstances. This policy does not apply to homicides, child abuse, violent felonies, sexual offenses, firearms offenses, or violations of the public trust.

c)     For Guideline sentences of 0 to 12 months, Deputies should ask for probation or home confinement, when appropriate.

d)    Studies show that most probation violations occur within the first year, and additional years are unnecessary with lower level offenses. Deputies will keep probation recommendations to a one-year maximum unless the conviction is for a violent felony or top-tier drug crimes.

e)     Over 90% of defendants sentenced to prison will reenter society, and it is critical that we recommend sentences that will increase the likelihood of successful reentry. Deputies will fashion sentencing recommendations to account for the individual circumstances of the case, including the victim’s need for justice and recompense, as well as the defendant’s needs for rehabilitation and reintegration back to society.

f)      Deputies will consider restorative justice processes that will help victims heal while also impressing upon the defendant the negative impact of his or her actions on the victim and society.

5.           Probation violations.

a)     Deputies will work with Delaware Probation and Parole to avoid recommending prison sentences for technical violations, such as missed curfews, etc.

b)    Deputies will not recommend zero-tolerance conditions of probation for people addicted to drugs or alcohol.

c)     Deputies will oppose the issuance of warrants, or the revocation of driving licenses, for failure of a person to pay a fine when the defendant is without the ability to pay. For example, Deputies will oppose all such warrants when the defendant is indigent and is represented by the Office of Defense Services.

6.           Children.

a)     Deputies will not pursue adult charges against children in Superior Court unless approved by the State Prosecutor. If a Deputy recommends prosecuting a child as an adult, the Deputy will continue to ensure that all relevant information is available, including family, educational, mental health and treatment information, as well as prior rehabilitative efforts.

b)    In assessing a case involving a child, Deputies will consider the effect of a child’s background and special needs, including the effect of trauma, on all disposition recommendations. With respect to bail, Deputies will only seek pretrial detention where there is no safer alternative.

c)     Deputies will utilize extended Family Court jurisdiction when necessary to further a child’s rehabilitative efforts and ensure public safety.

d)    Deputies will support expansion of the use of civil citations.

7.           Expungements, Pardons and Commutations.

a)     Deputies will support expungements for arrests for crimes that are now legal, as well as prior arrests for possession of marijuana and paraphernalia crimes related to marijuana possession.

b)    Deputies will support expungements when a nolle prosequi has been entered based upon insufficient evidence when the underlying offense is nonviolent in nature.

c)     Deputies will support pardon applications when a person applies in connection with a crime for which there is no violence and the crime is isolated in nature, when the applicant has demonstrated sufficient rehabilitation.