- Associated Press - Sunday, May 21, 2017

WICHITA, Kan. (AP) - Attorney General Jeff Sessions’ directive to pursue the most serious charges and longest sentences possible against most suspects is likely to thwart recent efforts to address what some attorneys say were heavy-handed practices by some prosecutors at the U.S. attorney’s office in Kansas City, Kansas.

While Sessions’ directive impacts federal prosecutions nationwide, it has raised particular concerns from a former Kansas top law enforcement official and comes amid an endeavor involving the courts, the defense bar and prosecutors to address alleged prosecutorial abuses.

Former U.S. Attorney Barry Grissom in 2013 put in place policies to charge fewer non-violent, low-level drug defendants with offenses that carry long mandatory sentences.

Grissom’s changes mirrored former Attorney General Eric Holder’s “Smart on Crime” initiative, which continued under former Attorney General Loretta Lynch and until Sessions recently scrapped it. Grissom also instituted Kansas-specific procedures in response to concerns about some Kansas City prosecutors.

Defense attorneys are troubled by the potential for a return to the widespread use of so-called “851 motions” that can trigger mandatory decades-long prison terms or life sentences for relatively minor drug offenses for suspects with prior convictions.

Sessions says violence in some big cities and the opioid epidemic show a need for tougher tactics. Critics call it a return to failed drug-war policies that unduly hurt minorities and crowded prisons with nonviolent offenders.

Court transcripts and documents bolster attorney criticisms that before the 2013 reforms Kansas City prosecutors often filed the motions in drug conspiracy cases if the defendant sought release on bond before trial or challenged the legality of search warrants or to force plea agreements.

For example, in a 2012 drug conspiracy case involving some 35 defendants, an assistant U.S. attorney put Damien Mick “on notice” that if he sought to be released pending trial she would file an 851 motion subjecting him to a minimum 20-year sentence upon conviction, telling the court: “It’s a hard and fast provision I have in these types of cases,” according to the court transcript.

Court records show the prosecutor filed that motion shortly after Mick’s detention hearing, but it was withdrawn two years later in the wake of the Smart on Crime initiative. He was sentenced in 2015 to four years in prison.

Defense attorney Kurt Kerns said Wednesday he hasn’t had problems with federal prosecutors in Topeka and Wichita, but his dealings with the Kansas City office have not been pleasant.

“I think they have addressed that in the last couple of years and it has gotten a lot better,” Kerns said. “But back in the day, if you had to defend somebody you didn’t want to do it in Kansas City if you could do it in Topeka or Wichita, that is for sure.”

Grissom called the move by Sessions “a little bit disheartening” given violent crime overall is at a near 30-year low. He acknowledged in a phone interview Tuesday that some federal prosecutors will be glad to get to go back to seeking the most-strict sentences possible, but noted there are also a lot of them who came onboard under the Smart on Crime approach who will now have to shift gears as well.

U.S. Attorney Tom Beall, who succeeded Grissom, declined to be interviewed. His office emailed a statement saying that charging and sentencing recommendations are “bedrock responsibilities for any federal prosecutor, and this guidance from the Attorney General permits us to use our discretion and judgment, and to apply the law to the facts of each investigation.”

When U.S. District Judge Julie Robinson expanded on Wednesday an investigation into government conduct involving prison recordings of conversations between inmates and their attorneys, she specifically referenced federal prosecutors in Kansas City office. She noted the “defense bar’s negative perceptions are not unfounded with respect to the practices of some, and probably a minority, of prosecutors.”

Robinson mentioned a project between the court and defense bar to address repeated complaints about the late disclosure by prosecutors of exculpatory evidence - material that could have strengthened a defendant’s bargaining power on plea deals had they known it existed.

Robinson said the court has in mind certain steps that will encourage a “cultural change, and hopefully restore” an environment of mutually earned respect, particularly in the Kansas City, Kansas, division.

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