It turns out that District Attorney General Bill Gibbons and U.S. Attorney David Kustoff are in the habit of talking daily. And, though some small talk gets in once in a while (the two are longtime acquaintances who share a background as Republican activists), most of their conversations involve decidedly serious matters — such as who gets to handle which cases.
The fact is, several of the high-profile recent prosecutions of prominent political figures involved potential violations of both state and federal law and could have been investigated and gone to grand jury and subsequently to trial either way. One such is the ongoing case of former MLGW president Joseph Lee and retiring councilman Edmund Ford, charged with trading political and financial favors. Another is the forthcoming prosecution of former county commissioner Bruce Thompson for allegedly doing something similar in lobbying the Memphis school system on behalf of a high-stakes contractor.
In one sense, there is no mystery as to why both these cases are scheduled for federal court. The preliminary investigations were done by the FBI, in tandem with the U.S. Attorney’s office, and the normal handoff is from one set of feds to the other. But that’s not the only consideration, according to Gibbons, who has at least a nominal claim to prior intervention and ultimate jurisdiction on these and other prominent cases that end up being dealt with at the federal level. The D.A. says there’s another issue involved: the well-known fact that punishments in federal court, subject to fixed sentencing guidelines, tend to be more severe.
For one thing, Gibbons notes, there are fewer sidetracks like early parole or even outright diversion, both of which are available in the state system. As Atlanta Falcons quarterback and dog-murderer Michael Vick discovered only this week, the maximum early release he might expect from his federal sentence of 23 months incarceration is fixed by established practice at 15 percent of that time — three months. Had he been tried in state court in Virginia, where his crimes were committed, Vick might somehow have wangled a way to cop a plea and get suited up for the current football season. And that, given widespread public revulsion to Vick’s deeds, would not have gone down well.
Conversely, we suppose, there are instances in which the wider discretions available to jurists in state prosecutions might be more suitable to a specific kind of crime by a specific kind of criminal.
An instructive saga is that of the late Mafia chieftain John Gotti, who escaped conviction several times before finally being nailed — at least partly because New York and federal courts competed for the honor of trying him and got in each others’ way. So if our two chief local prosecutors do in fact coordinate policy on criminal prosecutions — if each occasionally, and for good reason, agrees to pass the buck to the other, as it were — the ends of justice will presumably end up being well served. But it is an aspect of the judicial process that bears continued scrutiny.