Judges keep knocking down weak DC gun cases brought by Jeanine Pirro’s office

(CNN) — The Trump White House touted its surge of National Guard members to Washington, DC, last summer as the way to put more dangerous perpetrators in the nation’s capital behind bars. But in nearly a dozen criminal cases since the surge began, people who were found to be carrying weapons and charged in federal court have walked free.

The Justice Department has had to drop illegal gun possession cases in recent months after judges on the federal trial-level court in DC have repeatedly found fatal flaws in the cases — largely because the guns were found during unconstitutional police searches.

Several attorneys in Washington say the failed gun possession cases should never have been brought into court because they were weak from the start, and that the cases being charged — sometimes after months of briefings and hearings before they are dismissed — capture a diminished US Attorney’s Office under US Attorney Jeanine Pirro.

Even with crime declining in Washington, the cases have exposed a problematic aftermath of Trump administration policies, nearly a dozen sources say. Those policies in DC have prompted more policing, more cases charged despite their merits, and the gutting of the experienced career attorneys pool at the Justice Department, according to 10 people connected to the courts in the district, including former DC US Attorney’s Office prosecutors and defense attorneys.

These sources declined to use their names in this story because they still have work related to the US Attorney’s Office.

“That should never happen,” a former prosecutor from the DC US Attorney’s Office told CNN. “The prosecutors should know all the evidence and know how it was obtained. If there’s any vulnerability, they should know that and take that into account.”

Pirro rejected questions of whether the cases with faulty police searches were worth charging.

“Look, crime is at a historic low,” she said in a recent interview with CNN. “You can’t criticize this office.”

“We are talking about a period during a surge when arrests increased dramatically, and our focus was on bringing safety to the people of the District,” Pirro said, though a spokesperson, later this week. “As such, we are willing to take cases that are close calls to protect the community, even though that does not mean a judge will always agree with us.”

Since she’s become US attorney, the former New York county judge and Fox News host says she’s taken steps to train law enforcement on the streets in DC to do constitutionally sound searches. That’s included lecturing officers in the city’s Anacostia neighborhood about the process and using body camera footage to show them approaches to searches, as well as training FBI recruits.

One of the trainings took place as recently as March, the US Attorney’s Office said, and continued a yearslong practice of the office providing training to law enforcement on best practices under current case law.

“With the cases brought to my attention, my focus is to make sure that the evidence seized was seized in a proper and constitutional manner,” Pirro said.

Some cases, like one before Judge Tanya Chutkan in the DC District Court this year, began with a swarm of federal officers canvassing the city’s streets as part of the “federal takeover” policing surge last summer. Seven US Marshals surrounded a man’s car on East Capitol Street because he was double-parked. They then searched the car without having a valid legal reason to, the judge found.

That illegal handgun possession case is still ongoing, but Chutkan has thrown out of court the evidence from the search, which includes the gun, according to court records.

A jaywalking arrest

Gun possession cases can be straightforward: A law enforcement officer patrolling a community approaches a person on the street or in a car, searches through their things or the car, then finds an illegal gun. In these cases, the gun is the most crucial piece of evidence.

But without a clear reason to search the person, and the opportunity for the person to consent to a search, later charges may be vulnerable once they are tested in court.

In one case from August, a man was crossing the street in downtown Washington, eating ice cream, according to court transcripts.

The officer “testified that this was the first time he had ever initiated a stop for jaywalking,” Judge Amit Mehta said at a hearing in October. The man told the officer “he was going to pick up his son from school,” and the officer “did not detect anything” in a satchel the man was carrying.

Police then checked the man’s ID, noticed he was under court supervision from another case, and that he was carrying bags of marijuana, which is allowed in DC in smaller amounts. The police then grabbed the satchel that the man was carrying, and found a gun inside.

“No officer testified that the possible possession of a weapon was consistent with a person possessing more than 2 ounces of marijuana for personal consumption,” Mehta said, throwing out everything police found in their search of his bags, and effectively ending the case against the man.

Following the loss of the gun as evidence, the US Attorney’s Office in November told the judge they were dismissing the case against the man, “in the interests of justice.”

A federal prosecutor losing a suppression motion and having to drop a gun case in DC was, before last year, a rarer occurrence in federal court, several sources who watch the US Attorney’s Office closely say. Nationally, the number of gun possession cases charged in federal court are dismissed — for any reason — at a rate of about 5%, according to case statistics from the past three years published by the US federal judiciary.

Federal district judges on the bench in DC had rarely granted suppression motions on gun cases before.

(Gun cases in DC Superior Court — the local jurisdiction — are a different beast entirely. The local Court of Appeals recently struck down a citywide ban on high-capacity firearm magazines, in an impactful ruling yet one that isn’t affecting the federal possession cases.)

Vetting the cases

Several former prosecutors with Pirro’s office say the raft of now-dismissed gun cases has happened because the vetting of cases has changed since Pirro took office.

Previously, the office also had supervisors who focused on training greener prosecutors. The section handling gun cases used a data-driven approach to determining whether the cases would be sound enough to charge and maintained close, long-standing contacts with detectives in the city. But the ranks of the experienced prosecutors in the office have been gutted, having been fired by Pirro’s predecessor Ed Martin or left the office since last January.

Plus, the workload has gone up with the law enforcement surge in the city.

Now, the perception among the legal community is that Pirro’s office charges, “Everything! Everything,” said Abbe Smith, a Georgetown Law professor and defense lawyer who focuses on how the US Attorney’s Office and the DC courts approach crime in Washington.

“Past US attorneys have been fairly pragmatic,” Smith said. “There’s some discretion that’s usually involved in the decision having the case go forward. I see none.”

Prior to Pirro’s tenure, cases that originated with questionable police stops would not have been charged, Smith said. “The US Attorney’s office understood they were making those decisions at the front end. It’s costly in terms of resources.”

Pirro, since last year, has been combatting a reputation of the office in previous administrations for choosing not to prosecute following arrests in the past, prompting her prosecutors to bring charges nearly every time a person is arrested in the city.

Pirro said that on the cases she’s personally reviewed, she “made sure that they meet the constitutional muster.”

The office currently has a rate of not charging, in either local or federal cases, about 10% of DC arrests, a far lesser amount than her predecessors in the Biden administration.

Pirro said the president’s law enforcement surge in DC last summer merited 11,000 criminal cases, which includes cases charged in both DC’s federal court and in DC Superior Court. And violent crime has dropped in the city.

“The goal of the police and the goal of the prosecution are different,” one former DC gun possession prosecutor told CNN recently. “The police need to be focused on safety. If the stop was bad, still they got the person off the street and they got the gun. But the next step is determining the legality of the stop.”

At the same time, a team of prosecutors working on federal major crimes, including the gun and drug cases for the office, shrunk to half of what it was before Trump retook the presidency, and Pirro has scrambled to bring in new hires and temporary prosecutors from other federal lawyer jobs, former prosecutors and others familiar with the office say.

The Justice Department also recently lifted its requirement of one year of courtroom experience for new line prosecutors in the US Attorney’s Office.

“You have to have people willing to exercise restraint and say, this is a garbage case,” the former prosecutor said.

The losses in the gun cases have compounded difficulties Pirro’s office is facing as well. The thin ranks of prosecutors in the office are sinking time into flawed cases, and the office has lost significant credibility before the district judges in the DC District Court, several people close to the bench have told CNN.

“If you’re spending an inordinate amount of time briefing and preparing, it’s one less opportunity for you to bring another case that does have merit,” the former prosecutors said.

How the cases resolved

In opinion after opinion in recent months, about a half-dozen DC federal trial-level judges have captured how Pirro’s team and law enforcement in the city made iffy legal decisions in charging the cases.

In one case last year, police had gone through both a man’s car and the backpack illegally, DC District Court Judge Beryl Howell decided in August. Prosecutors had said the man was standing next to a parked car and another man smoking marijuana on a street corner in Southeast DC when patrolling Metropolitan Police officers approached him.

The officers said he had a red plastic cup of bourbon and an open bottle of bourbon in his car, leaving them to handcuff him.

Then, without having probable cause, the judge found, the police officers searched the car and found a backpack with a stolen, loaded semi-automatic pistol in it, as well as an inmate ID card from a Maryland county jail where he had previously served time, according to a court filing from the Justice Department in May last year arguing the man should stay in jail as he awaited trial.

When Howell asked the Justice Department to explain why there was reasonable suspicion to stop the man, “the government says nothing,” Howell said.

Howell determined the police took their approach of the man smoking marijuana “as an opportunity to try and build reasonable suspicion to this defendant for whom they had none,” the judge said at a hearing. The search of his backpack, where police found the gun, was unlawful, she said.

“Probable cause requires more than bare suspicion,” the judge added, looking at past cases and Fourth Amendment protections against unreasonable searches.

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