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D.C. Transparency Watch: Former D.C. AG Scores Weak Transparency, Accountability in D.C. Prosecutions, Calls on Congress for Reform

dcogcadmin | February 14, 2016

UPDATE 11/5/16  A lawsuit has been filed by the District ANC Commissioner whose FOIA request was featured in the Nathan editorial discussed in the post below. Washington City Paper reported March 30 that Denise Krepp lost an administrative appeal and planned to pursue her request further by a court challenge to the U.S. Department of Justice. The DOJ responded to her initial request (for records tracking D.C. arrests through prosecution or other outcome) that the agency had no “responsive records.” According to the City Paper, Krepp believes such records do exist “based on public comments by officials from the U.S. Attorney’s Office for D.C. This includes statements on the number of cases by crime type in the judicial system (such as when officials announced a “robbery task force” earlier this year) and monthly reports DOJ puts out. ‘If you can talk about it case-by-case, then you can come up with the data,’ she says.”

The paper reported the filing May 17. (Complaint linked below.) The government has moved for summary judgment and a hearing is set for 2:00 on December 15 in Courtroom 17 before Judge Katenji-Jackson in the federal courthouse in D.C. The government’s position is that denial of her request for data “by ward” was not incorrect, as DOJ doesn’t keep such data (only by police district), and “when she was informed that this information did not exist, she made no effort to broaden her request to include crime statistics in general, or by police district, or by type.”

In a sharp attack on a longstanding limit of the home rule powers of the District of Columbia, former attorney general Irving Nathan has called for local prosecution of serious crimes.

The 1973 law allowing some local autonomy for the District also kept some matters out of the hands of the new elected legislature, including changing anything about the longstanding prosecution duties of the U.S. Attorney here.

Nathan, also former counsel for the U.S. House of Representatives and now an attorney at the Arnold & Porter law firm, writing in The Washington Post, compared the “grossly mishandled criminal investigation” of former D.C. mayor Vince Gray to the water crisis in Flint, Mich.

According to Nathan, Flint (overseen by state-mandated emergency managers) and the District (where felony prosecutions are decided by federal officials), share the problem that key responsibilities are in hands of “appointed outsiders with little or no accountability to the local population.”

Even where the elected D.C. Council puts a new criminal offense on the law books, it lacks the power (because of the congressional limit) to direct that it be prosecuted by the D.C. top law enforcement official, the attorney general, according to a ruling by the D.C. Court of Appeals in 2009.

In making his case, Nathan noted the problem of access to information on how the District’s justice system is working—pointing to the “admission” by the U.S. Attorney (reported in the Post December 12, 2015) that it had “no way to answer a D.C. citizen’s request” for records on arrests and prosecutions. (The office said it didn’t have a consolidated record tracking each arrest to its outcome and assembling a compilation of individual cases would be long and costly.)   

Nathan called that response a demonstration of the lack of accountability accompanying “the antiquated and undemocratic situation” that Congress created in limiting D.C. home rule but that now should change, especially as Congress allowed the local initiative resulting in “a highly competent, elected D.C. attorney general, Karl Racine.”