Hyde Amendment (1997)

For the 1976 abortion funding amendment, see Hyde Amendment.

The Hyde Amendment (USC Title 18,3006A) is a federal statute introduced by Representative Henry Hyde (Republican-Illinois) as a rider to an appropriation bill and worked into the final 1997 Department of Justice bill by the United States Congress. The Justice Department was intensely opposed to the statute. The purpose of the statute is to allow federal courts to award attorneys' fees and court costs to criminal defendants "where the court finds that the position of the United States was "vexatious, frivolous, or in bad faith". In such cases, the federal court may allow victims to recover some of the costs they incurred in fighting the government's investigation and prosecution by authorizing an award of attorneys' fees and court costs to a criminal defendant when the prosecution's evidence is so baseless as to be "frivolous". Compensation awarded under this statute would come out of the budget of the specific federal agency involved, most likely the United States Attorney's Office.

Need for restraint

Prosecutorial abuse in the United States Attorneys Office has become a growing problem as pressure to crack down on crime has increased. At the same time, maintaining sufficient oversight of the practices and ethics of the Justice Department has become increasingly difficult for Congress, the press, and the courts. Criminal defense attorneys are especially vulnerable to "bad faith" prosecutions and the burden these place on the vindicated defendant.

There is no other department [of government] that is viewed with comparable terror or fear, because there is no other department that by itself can put you in jail or take your life, liberty or property away from you. The [Justice] Department has the FBI and the other agencies. It has become a Leviathan in the minds of a lot of people because it is so big and imponderable. I think it is correct to say that no outsider is capable of oversight.

Most prosecutors are elected officials. The decision to file charges can be affected by public opinion or politically powerful groups. If prosecutors do not carefully screen the cases chosen to pursue, individuals are charged when there is insufficient evidence. More and more the high public profile of the suspect or the sensational nature of the crime may have more bearing on the charging decision than the weight of the evidence or the nature of the crime.

Even under the Hyde Amendment it is an acquitted defendant's responsibility to prove that the prosecutor acted in bad faith or the case was frivolous. In U.S. v. Mary Louise Denese Slaey, the government dropped all counts on August 2, 2006 although further review of her case was continuing elsewhere and she was not notified of the dismissal of the further review until February, 2007. Slaey filed for legal reimbursement on April 3, 2007; her request was dismissed on April 25, 2007 because the August 2006 motion ended the issue from the court's point of view so her motion was dismissed as "out of time", that is more than 30 days after the dismissal.

Aisenberg case example

Sabrina, the five month old daughter of Marlene and Steve Aisenberg, vanished from their home in Valrico, Florida , on November 24, 1997. On Larry King Live, the Aisenbergs described how they cooperated with the police, prosecutors and investigators in every way once the baby was found missing. However, since statistics show that usually a parent is responsible for a missing child, the police relied on this assumption in holding the Aisenbergs as the primary suspects. Barry Cohen, also a guest on Larry King, said he was retained by the Aisenbergs a few days later. He acknowledged that the police were fully within their rights to suspect the missing child's parents, but said that they became obsessed with this hypothesis, even when they could find no evidence to support it, and ceased looking for other leads. When the police failed to find evidence to support that conclusion, Cohen said, they lied to a state judge for permission to tape conversations in the Aisenberg household without their permission. Since the tapes produced no incriminating evidence, evidence was fabricated according to Cohen. The federal judge called it all "false".

A Federal judge in the United States District Court for the Middle District of Florida dismissed the case in February 2001, after a hearing reviewing the evidence, primarily in the form of audio tapes obtained by the police. The Aisenbergs were unaware that, for a period of 79 days, investigators recorded over 2,600 separate conversations on 55 different audio tapes. The tapes, a key part of the prosecution's case, were ruled poor and inaudible. Cohen, when asked why law enforcement fabricated the case, said that he did not blame the police in particular but that the whole system was pressured to successfully prosecute after the Susan Smith and JonBenét Ramsey cases. When asked why he was still involved in the case, Cohen answered:

We are going to look to hold everybody accountable for this terrible tragedy that has been imposed upon the Aisenbergs. ... This case is indicative of a problem in this country that we need to realize exists. When we have police officers making a case and fabricating evidence, as the judge found in this case; when we have prosecutors telling a judge untruths about existence of facts on tapes, we have a serious problem. What do people do this country who can't afford lawyers like us to pursue this the way we did? They're framed and they go to jail daily.

U.S. v. Aisenberg, 247 F.Supp.2d 1272 (M.D.Fla. 2003)

In U.S. v. Aisenberg the Aisenbergs and Barry Cohen's firm were awarded $2.9 million in legal fees and costs under the Hyde Amendment. In a 98-page document, Judge Merryday of the Middle District of Florida reviewed the case and explained why he ordered the federal government to pay a record-setting $2.9 million in legal fees and expenses under the Hyde Amendment for bringing a prosecution that was “vexatious, frivolous, or in bad faith.” The judge's long decision is highly critical of the government. Further, the judge ordered the government to release the grand jury transcripts to the public, as “the public is entitled to know” about the “misdirected and overzealous prosecutorial exertions” in this case.

It was assumed in the Hyde Amendment that billable hours would be capped at $125 per hour. However, since the work done in this case was by highly paid attorneys, the rate of billable hours was considerably higher than $125. Judge Merryday scrutinized the 11,251 billable hours submitted by Cohen and associates and subtracted only 310 hours from the total. Cohen argued that because of the complexity of the case and its successful outcome, the rate of billable hours should be multiplied by three. (This is a standard practice in civil cases.) The judge declined to multiply the fees, but he did agree that a substantial increase in fees was warranted in this case, setting an important precedent, as an increase in fees had never previously been allowed in a Hyde Amendment case.

External link

• § 3006A. Adequate representation of defendants
• Power, policy, and the Hyde Amendment: ensuring sound judicial interpretation of the criminal attorneys' fees law
• Laws: Cases and Codes : U.S. Code : Title 18 : Section 3006A
• United States of America v. Mary Louise Denise Slaey
• Punch & Jurists Weekly Newsletter, 1999