Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM ANSWERS QUESTIONS ABOUT FEDERAL AND STATE PROSECUTIONS OF DRUG CASES.

In my last blog, we discussed the case of two gentlemen who were taken into custody at Logan Airport and are facing heavy drug charges. They were arraigned in state court,

The cases are unlikely to stay there, though.

While they are currently in district court, they are likely to be indicted and prosecuted either in state superior court or federal district court.

Or, at least one of them is.

“What do you mean, Sam? They were arrested at the same time with the same stuff…wouldn’t the cases be kept together?”

Usually, yes. However, not always. Sometimes the cases will be handled separately. One of the typical scenarios for that to happen is if the prosecution is able to get one of the defendants to cooperate and become a witness for the prosecution. As part of the deal, one defendant may be given lighter treatment in state court while the other one faces more serious federal criminal charges.

“Does that always happen?”

No, of course not. One thing you should know is that there is no “always” when it comes to criminal justice. But that’s beside the point. Normally, particularly if a case is being handled by federal law enforcement, there will be at least an attempt to get someone to “turn”. Sometimes it works, sometimes it does not.

Every case is different. It would seem that there is, or was, already some interest in keeping the cases separate because law enforcement is quoted as saying that the two were not “together”. Under these circumstances, such a statement is surprising.

There are a number of considerations involved when deciding whether a case will be prosecuted in federal or state court.

“Who has jurisdiction to prosecute?”

Actually, both state and federal law enforcement have jurisdiction to prosecute this matter, The drugs are believed to have come from out of state, if not out of country. This, in itself gives federal law enforcement the jurisdiction. The location of where the drugs were found give both governments the right to prosecute. They were found in Suffolk County, Massachusetts, which is where Logan Airport governments, what happens in airports, can be prosecuted in federal court.

“So who gets to choose which way it will go?”

Federal law enforcement generally gets that choice. This is part of why their record of “wins” is so high.   They generally want to pick cases which are already quite strong.. On the other hand they also tend to choose to prosecute the cases that are “big enough”. It varies on the reasoning, but it is federal law enforcement that gets to choose whether the case will go to state or federal court.

“Which should a criminal defendant prefer?”

Again, the answer is not set in stone. However, generally a defendant has a better shot in state court.

“Why is that?”

A few reasons. First of all, federal sentencing has almost become mathematical. There are Federal Sentencing Guidelines which, while not mandatory, control to a great deal what a court will impose. And the numbers are in terms of months. Many months. In state court, it is more possible to get more individualized treatment.

Second is resources…both to the prosecution and the defense. The federal prosecutors have investigative agencies like the FBI, DEA, ATF and Homeland Security to aid them. They are all quite professional and have the ways, means and interest to do a thorough job. On the other hand the resources to the defense…such as the fair disclosure of discovery…is much less in federal court.

Thins like Grand Jury minutes and certain statements which might be vital to the defense are not disclosed to the defense until shortly before trial. In state court, these things are disclosed in the beginning of the process.

“Which way is this likely to go?”

Hard to say, but if the case does stay in state court, it will surely not stay in district court (where it is now). It will be indicted and move up to superior court.

At this point, I would say that which way it goes might be effected by the level of expertise and experience of defense counsel. You can be sure that major decisions which will effect the trajectory of this case, or cases, is being decided behind closed doors where a lot of negotiating either is, or should be, going on.

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