December 1, 2003 - San Diego Union-Tribune (CA)

Prosecutors Flying the Coop

U.S. Attorney's Office loses 27 of 122 on staff

By Marisa Taylor, Union-Tribune Staff Writer

At first, the news that federal prosecutors in San Diego were leaving their government posts only qualified as juicy office gossip.

Then, as more assistant U.S. attorneys headed for the door, law enforcement agents began complaining that fewer cases were being prosecuted because of understaffing.

In just over a year, 27 of San Diego's 122 assistant U.S. attorneys have announced they are leaving, doubling the turnover rate of an office usually known for retaining career prosecutors.

The attorneys cite a variety of reasons, including an unaffordable housing market and a new Justice Department mandate that limits their plea-bargaining powers.

Most troubling for some lawyers is the growing sense that low morale is to blame for many of the departures, a perception said to be worsening with every exit interview.

The turnover in San Diego, which has one of the nation's heaviest federal caseloads, now outpaces those at offices with normally higher attrition, including Manhattan.

The exit rate also is higher than it was under Alan Bersin, San Diego's last permanent U.S. attorney. About 11 percent of prosecutors resigned in the first 13 months of Bersin's tenure, compared with 22 percent during the same period under Carol Lam, the current U.S. attorney.

Lam, who assumed the post in September 2002, said she is concerned about the turnover, but she believes prosecutors are leaving for personal and professional reasons that have nothing to do with how the office is being run.

"We attract some of the best talent in the nation," Lam said. "It's no surprise to me when other opportunities open up for people.

"If there's any discontent, it may be a consequence of the fact that we're not up to full staffing at this point."

Where they went

Three veteran prosecutors have accepted judicial posts, and several others have taken jobs at private law firms. Many of them said they enjoyed working at the U.S. Attorney's Office, but couldn't resist prestigious job offers.

Ten of those who left worked in temporary, two-year positions as part of a program established in the 1990s to help the office handle the crush of drug and immigration cases. Several of them were at the end of their terms, but didn't get hired for permanent positions. Others didn't apply.

Charles La Bella, a former interim U.S. attorney in San Diego, said U.S. attorney's offices that are known for being busy and for prosecuting high-profile cases often attract ambitious attorneys who soon move on to other jobs.

"It's healthy to have some turnover, because you get new blood coming in," La Bella said. "You need to have a balance between seasoned and young prosecutors."

Yet law enforcement officers tend to see staffing shortages as a problem, because a dip in the number of prosecutors can mean a decrease in criminal cases.

Michael Vigil, the special agent in charge of the Drug Enforcement Administration's San Diego office, raised the staffing issue last month in a letter to Lam. He said fewer drug cases were being prosecuted, forcing him to send more cases to the county District Attorney's Office, where sentences can be more lenient.

Vigil, who refused to release a copy of the letter to The San Diego Union-Tribune, said he wanted to document the need for more prosecutors, not criticize Lam's office. "Carol Lam is doing everything she possibly can with the attorneys she has," he said.

Lam said law enforcement agencies often lobby her office to take more cases ­ regardless of the staffing level.

"I could have 500 attorneys in the office, and that would not be enough attorneys to handle all the cases we would like to handle," she said. "Agencies, I think rightly, are always seeking more prosecutors to handle their cases."

Border's burdens

Working as a federal prosecutor can be one of the legal profession's most glamorous, sought-after jobs, filled with the drama of courtroom trials and the challenge of overseeing federal investigations.

But the experience can be different in offices near the U.S.-Mexican border, where attorneys often find themselves slogging through routine immigration and drug crimes.

Prosecutors also become disillusioned by starting salaries that can be as low as $67,000, while their peers at tonier law firms earn triple that.

Even some prosecutors who are determined to stay in public service are leaving.

"Don't get me wrong; I love San Diego," said Mark Inciong, who took a job with the U.S. Attorney's Office in Las Vegas in August after five years in San Diego. "But I couldn't buy a house."

For a few of the departing attorneys, the job became less desirable because of Justice Department policy changes.

In September, U.S. Attorney General John Ashcroft ordered prosecutors to seek the toughest punishment in nearly all cases, using plea bargains only in special situations. He also ordered U.S. attorneys to report any federal judge who imposes sentences more lenient than specified in federal guidelines.

Kristine Wilkes, who left as a partner with Latham & Watkins to become a prosecutor in July 2002, was 10 months into her new job when she was handed a draft of Ashcroft's plea-bargaining restrictions. Already frustrated by the grind of handling border crimes, the policy change cemented her decision to leave.

"I saw the writing on the wall," said Wilkes, who has returned to her old firm. "I felt like my discretion was being taken away."

The morale issue

Other prosecutors blame Lam and her management team for boosting the number of departures by failing to tackle an office morale problem. The critics include several people who left and others who remain in the office.

The attorneys asked to remain anonymous because they either work in the same legal circles or because Lam is still their boss. They said they felt it was important to speak out because they are afraid the high turnover will harm prosecutions.

None of them questioned Lam's dedication and hard work. She is often the first to arrive at the office and the last to leave.

But some prosecutors wonder whether she realizes that a good manager also needs to trumpet convictions and praise appeal wins.

"She's not warm and fuzzy," one said. "It sounds like a strange criticism for a federal prosecutor. It's not usually part of the job description.

"But, to be U.S. attorney, I think most people would agree you need to make people feel appreciated. I think some people don't feel appreciated right now."

Lam's critics also said she miscalculated the fallout from some of the changes she has made.

Prosecutors assigned to border crimes had hoped Lam's merger of two sections ­ one that handled only border crimes and another that handled crimes such as bank robberies and government theft ­ would give lawyers in those sections more time for in-depth investigations.

Yet some attorneys said the merger merely created a perception that prosecutors in the new section were unlikely to be moved into more desirable jobs in other divisions.

In another change, Lam created separate hiring procedures for two-year prosecutors who want permanent spots. Some lawyers complain that the new process is too stringent and drives away young prosecutors who are needed to handle border cases.

Bersin's critics

Lam isn't the first U.S. attorney in San Diego to be criticized.

Bersin, who ran the office between 1993 and 1998, came under fire for prosecuting thousands of immigration and drug crimes as felonies instead of misdemeanors. His staff also complained about his lack of criminal experience ­ criticism that is not aimed at Lam, a veteran prosecutor.

Lam's supporters say the San Diego office has always been prone to morale problems. Prosecutors on the fifth floor of the federal building, who handle border crimes, have complained for years that their counterparts on the sixth floor are treated better and given more credit for their fraud and narcotics cases.

Half of the 33 attorneys who handled border crimes have announced their resignations since August 2002, creating a heavier workload for those who remain.

"Carol is trying, but there are too many cases and people get frustrated," said Mi Yung Park, who left in March after prosecuting border crimes for almost three years. "It's going to be a difficult position for any U.S. attorney."