How Much Did the Holder Memo Affect D.C.'s Prosecutions?
The U.S. Attorneys’ Office in D.C. (USAODC) has been under ongoing scrutiny for the low number of cases prosecuted in recent years. At times, the prosecution rate has been as low as 33 percent.
In the last ten years, the USAODC simply stopped bringing hundreds of cases to trial as its conviction rates plummeted. The USAODC and other city representatives attributed the decline to the poor quality of cases being brought.
In a story for WUSA, current USAODC Matthew Graves noted that they lost 75 percent of search and seizure appellate cases because of changes to appeals law in recent years.
Two cases in particular, T.W. vs. U.S. and Mayo vs. U.S. changed the standards by which police can search individuals. In T.W., the courts found that a search for a gun was illegal after body-worn camera footage showed the officers did not have probable cause, and Mayo was similar, but without camera footage.
But those two cases were only decided in the last year and a half and therefore unlikely to be related to the failed and declining prosecutions of the past decade.
Instead, something more likely to have affected those prosecutions is the 2010 memo from previous U.S. Attorney General Eric Holder.
In the memo, Holder announced a new policy for federal courts affecting discovery—the exchange of evidence such as interrogations or police camera footage from both sides during the pre-trial period—insisting that “broad and early discovery often promotes the truth-seeking mission.” Further guidance from then-Deputy Attorney General David Ogden would outline requirements about turning over forensic results and the written summary of expert testimony.
Since the USAODC is a federal court that handles most local crime in D.C., it is the sole municipality overseen by the Justice Department and therefore affected by changes dictated by Holder. The other prosecution office in D.C., the office of the attorney general (OAG)—which handles lower level crimes and juvenile crime—is run by the city of Washington, D.C. and would not be affected. The OAG has not seen the same declining conviction and prosecution rate as the USAODC.
There’s not much written about the effects of the Holder memo on criminal prosecution, but the timing lines up. The year it was issued aligns with the sudden growth in declined felony prosecutions in D.C. Felony conviction rates were growing rapidly since 2008, but would plateau in 2010, eventually declining to a historic low in 2018.
Conviction rates for misdemeanor cases would also begin a substantial decline in 2010, but that trend is less clearcut as rates had also been in decline from 2005 to 2009. Misdemeanor case declinations started in 2013 rather than 2010.
The Holder memo also pre-dates other explanations like police-worn cameras and D.C.’s forensic lab losing its accreditation that came after the prosecution rates started dwindling.
A 2021 New York Post story detailed a similar situation in New York City to that of D.C. as city prosecutors dropped 17 percent of felony cases where, according to their source, new standards for discovery in New York state—requiring prosecutors or police turn over all evidence within 15 days of arraignment or indictment—are undermining cases.
Background of the Holder Memo
The instigation for the Holder memo was the collapse of the legal case against then Alaska Senator, Ted Stevens.
In that case, the judge threw out the indictment because the prosecution willingly held back exculpatory evidence in the form of interviews with a key witness, and the prosecutors were held in contempt. A Federal Bureau of Investigations (FBI) whistleblower had come forward to detail that the prosecution team redacted information handed over to the defense that would have exonerated the Senator.
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