Hyde Amendment (1997)
Encyclopedia
The Hyde Amendment 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.
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.
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.
, on November 24, 1997. On Larry King Live
, the Aisenbergs described how they cooperated with the police
, prosecutor
s and investigator
s 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 the evidence 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:
and costs
under the Hyde Amendment. In a 98-page document, Judge Steven D. 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.
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
introduced by Representative
Representation (politics)
In politics, representation describes how some individuals stand in for others or a group of others, for a certain time period. Representation usually refers to representative democracies, where elected officials nominally speak for their constituents in the legislature...
Henry Hyde
Henry Hyde
Henry John Hyde , an American politician, was a Republican member of the United States House of Representatives from 1975 to 2007, representing the 6th District of Illinois, an area of Chicago's northwestern suburbs which included O'Hare International Airport...
(Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
-Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
) as a rider
Rider (legislation)
In legislative procedure, a rider is an additional provision added to a bill or other measure under the consideration by a legislature, having little connection with the subject matter of the bill. Riders are usually created as a tactic to pass a controversial provision that would not pass as its...
to an appropriation bill
Appropriation bill
An appropriation bill or running bill is a legislative motion which authorizes the government to spend money. It is a bill that sets money aside for specific spending...
and worked into the final 1997 Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
bill by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. The Justice Department was intensely opposed to the statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. The purpose of the statute is to allow federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
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
United States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
's Office.
Need for restraint
Prosecutorial abuse in the United States Attorneys OfficeUnited States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
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
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
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.
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, FloridaValrico, Florida
Valrico is an unincorporated census-designated place in Hillsborough County, Florida, United States. The population was 6,582 at the 2000 census.-History:...
, on November 24, 1997. On Larry King Live
Larry King Live
Larry King Live is an American talk show hosted by Larry King on CNN from 1985 to 2010. It was CNN's most watched and longest-running program, with over one million viewers nightly....
, the Aisenbergs described how they cooperated with the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
, prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
s and investigator
Detective
A detective is an investigator, either a member of a police agency or a private person. The latter may be known as private investigators or "private eyes"...
s 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
Barry Cohen (attorney)
Barry Cohen is a criminal and personal injury attorney in Florida's Tampa Bay Area. He has been characterized as a fighter for his aggressive legal tactics.-Legal methods:...
, also a guest on Larry King
Larry King Live
Larry King Live is an American talk show hosted by Larry King on CNN from 1985 to 2010. It was CNN's most watched and longest-running program, with over one million viewers nightly....
, 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 the evidence false.
A Federal judge
Federal judge
Federal judges are judges appointed by a federal level of government as opposed to the state / provincial / local level.-Brazil:In Brazil, federal judges of first instance are chosen exclusively by public contest...
in the United States District Court for the Middle District of Florida
United States District Court for the Middle District of Florida
The United States District Court for the Middle District of Florida serves the residents of thirty-five counties from eight courthouses....
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
Susan Smith
Susan Leigh Vaughan Smith is an American woman sentenced to life in prison for murdering her children. Born in Union, South Carolina, and a former student of the University of South Carolina Union, she was convicted on July 22, 1995 of murdering her two sons, 3-year-old Michael Daniel Smith, born...
and JonBenét Ramsey
JonBenét Ramsey
JonBenét Patricia Ramsey was an American child beauty pageant contestant who was murdered in her home in Boulder, Colorado, in 1996. The six-year-old's body was found in the basement of the family home nearly eight hours after she was reported missing. She had been struck on the head and strangled...
cases. When asked why he was still involved in the case, Cohen answered:
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 feesAttorney's fee
Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Attorney fees are separate from fines, compensatory and punitive damages, and from court costs in a...
and costs
Expense
In common usage, an expense or expenditure is an outflow of money to another person or group to pay for an item or service, or for a category of costs. For a tenant, rent is an expense. For students or parents, tuition is an expense. Buying food, clothing, furniture or an automobile is often...
under the Hyde Amendment. In a 98-page document, Judge Steven D. Merryday of the Middle District of Florida
United States District Court for the Middle District of Florida
The United States District Court for the Middle District of Florida serves the residents of thirty-five counties from eight courthouses....
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 links
- § 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