The Wrong Enemies

This spring, it was just his underlings and the city's criminal-defense bar who were annoyed with interim U.S. Attorney James DeAtley. Now the area's federal judges are getting angry, and in terms of enemies to have lined up against you, that's a big step up.

The judges have written a formal letter to DeAtley criticizing his policies, and one judge has said in open court that the U.S. attorney "thinks that I'm a fool" because of his too-generous plea-bargain offers to defendants.

DeAtley has been criticized for being obsessed with running up statistics for the Southern District of Texas. Critics say he tells his assistants to take on minor cases that would usually be passed on to state prosecutors, that he urges them to offer sweetheart plea bargains to move those cases along, and even that he'll break up conspiracy cases into separate actions to get bigger conviction numbers, not caring that courts and prosecutors will be duplicating efforts and government witnesses will be forced to testify time and time again.

DeAtley, the chief federal prosecutor for the massive Southern District of Texas, has shrugged off the carping by saying that he's responding to pleas from local law-enforcement agencies looking for help in battling violent crime and drugs.

He also says that the local feds have applauded his efforts. "If you were to ask the special agents at the FBI, the DEA, the ATF and the Secret Service, I think they'd have good things to say about this office," he says.

It's easy enough to dismiss criticism from employees -- or defense attorneys upset that complicated but lucrative major cases aren't being indicted -- but having the federal bench line up against you is something else.

In a September 22 letter to DeAtley, Judge Vanessa Gilmore, liaison between the judges and the prosecutors, complained about "a new trend" in the U.S. Attorney's office of indicting related defendants separately rather than grouping them into one case.

Not only did such a policy complicate the judges' dockets, Gilmore wrote on behalf of her colleagues, but she said that it appeared the U.S. Attorney's office was violating a local rule that requires all criminal and civil attorneys to notify judges of any litigation related to a current case.

DeAtley says that his office "does [its] dead-level best to comply with the rules," and that he believes he has assuaged judges' concerns about notifying them of related litigation.

Gilmore's letter was no doubt intended to warn DeAtley of more than concerns over the relatively minor matter of a local rule. It was seen by some as a shot across the bow on the larger issue of the office's policies on indicting defendants.

Gilmore's language, though, was restrained. Another judge was more forceful at a hearing on one of the U.S. Attorney's office's most controversial cases.

DeAtley inherited a massive 79-defendant drug-conspiracy case involving what's known as the Moreno-Riojas Drug Ring. The case drew heavy criticism from the start for being unwieldy and over-indicted, but until DeAtley came along, the case was definitely expected to go forward. In fact, a huge set of secure bleachers was constructed in a Houston courtroom to handle the large group of defendants.

Beginning this spring, though, DeAtley made it clear he wanted to plea-bargain the whole thing away. He took away from the aggressive lead prosecutor any authority to plea-bargain, giving it to assistants more eager to negotiate. The lead prosecutor had to prepare her case not knowing who was taking what deals and what the government was getting in return.

By June, with the case ready for trial, only a handful of defendants hadn't yet accepted the generous offers from prosecutors. Typically, defendants who wait until the last moment to accept a plea bargain get stuck with a bad deal; prosecutors like to make them pay for wasting their time.

But in this case, the offers got better as trial loomed. Some defendants even pled guilty to misprision of a felony, a very minor offense that's rarely used.

The frantic deal-making didn't go down well with U.S. District Judge Melinda Harmon, a Republican usually seen as being friendly to the government.

In a final pretrial hearing in June, she learned that all but one of the remaining defendants had pled out, and she wasn't pleased. Her attack came just after defense and prosecutors told her six of the final seven defendants were ready with plea bargains.

"I just want to make a few comments before we proceed," she said, according to a transcript of the hearing. "Normally, when pleas are taken the day of trial, the day that the jury is to be chosen or the day before, the United States attorney insists that the defendant plead to the indictment. In this case it seems that the closer we get to trial, the more generous the United States Attorney is in the offers for plea agreements.

"I know that Mr. DeAtley thinks that I'm a fool. I know that. And I know that he's trying to show that I'm a fool by these plea agreements that have been coming in fast and furiously over the last week or two and certainly the ones today."

She apparently didn't think that message was clear enough -- although by this point, said someone familiar with the scene in the courtroom that day, "you could've heard a pin drop" -- so Harmon added this:

"I just want to say on the record that I know that something very odd is going on in the U.S. Attorney's office, as shown by the way this case has been handled, and that I'm aware of that. And I will accept these pleas, or I'll certainly hear what has to be said today concerning the pleas, but I just want Mr. DeAtley to know that I know what is going on in the United States Attorney's office."

DeAtley said that he could not comment on Harmon's remarks, because the case remains pending until the defendants are sentenced.

If the judges decide to move against DeAtley, it wouldn't be the first time they've taken on the U.S. attorney. In the late 1980s, judges complained former U.S. Attorney Henry Oncken was flooding their courts with minor drug cases. Oncken wanted to stay on in his position, but the judges wielded behind-the-scenes influence to block another term.

And now the 15 Southern District judges may be ready to take similar action against DeAtley, who's in an especially precarious position as an interim appointed from San Antonio a year ago. He holds his position through a majority vote of the judges. While the legal office of the Department of Justice in Washington says an interim U.S. attorney can only be fired by the President, the judges likely have enough political influence to make things uncomfortable for DeAtley if they choose to.

At least one judge, however, says replacing DeAtley would not change things. "The problem is not DeAtley personally, it's institutional," the judge says. "The U.S. attorney serves a whole bunch of [law-enforcement] agencies, and their budgets are affected by the number of cases they bring."

DeAtley says that he, like everyone else, has no idea how long he'll be in office. The Democratic House delegation from the Southern District has recommended that assistant U.S Attorney Mervyn Mosbacker of Brownsville be given the permanent job, but the White House has not formally sent the nomination to the Senate.

With an election looming and the Senate Judiciary Committee likely to have bigger things on its mind, DeAtley might just be in office until 2001. Unless, of course, the judges' anger continues to grow.

E-mail Richard Connelly at


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