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When a potential client calls our firm and tells us that they are charged with a criminal offense, one the first things we generally ask them is whether they are charged in state or federal court. There have been several instances where we have represented two individuals at the same time who are charged with similar offenses but one has been charged in federal court and one has been charged in state court. Indeed, this has happened several times where we have simultaneously been representing two individuals charged with drug offenses but one is charged in state court and one is charged in federal court. It also happened very recently where we simultaneously represented a defendant charged with a child pornography offense in state court and also represented a defendant (actually he was the spouse of an FBI agent) charged with a child pornography offense in federal court.

The reason that this is such a concern is that, often, the results for the defendants charged in state court are dramatically different than the results for the defendants charged in federal court. Indeed, it is not unusual for a defendant charged with a drug offense or child pornography offense in state court in Dallas County to be placed on probation and a defendant charged with the same or similar offense in federal court to be sentenced to ten year or more in prison.

Why is this? In state court in Texas, regardless of the offense with which a defendant is charged with, he can be placed on some type of community supervision. For example a defendant can commit murder and be placed on community supervision in state court. On the other hand, federal court sentencing is done under a system of guidelines that score a defendants offense and criminal history using a grid system. This grid system can lead to very harsh sentences even for first time offenders. Moreover, most drug offenses in federal court require mandatory minimum sentences under the federal, drug statutes. I recall one time many years ago representing a client charged with counterfeiting in federal court who faced a two year sentence under the federal sentencing guidelines and his wife bringing me a newspaper article about a murder defendant in state court being placed on probation and me having to explain to her the unfair differences between state court sentencing and federal court sentencing.

The differences result from being charged in state court versus federal court is not only limited to the ultimate sentences imposed.

First, in many Texas counties, a defendant charged in state court can make a presentation to the grand jury in an attempt to convince the grand jury not to indict him in the first place. Such presentations cannot be made to federal grand juries and it is rare that a federal grand jury will refuse a prosecutors request to return an indictment.

Second, often the chances of winning a case at trial or having the case dismissed prior to trial in state court can be significantly higher than in federal court. One reason is that the offenses prosecuted in state court are investigated by local police departments who are not nearly as well trained as federal agents who normally investigate the offenses prosecuted in state court. Consequently, sometimes mistakes are made by the local police officers that can be used to a clients advantage. Likewise, federal prosecutors tend to be more experienced and have more resources than state prosecutors. Another reason that the chances of winning a case in state court can be significantly higher than in federal court, at least in Dallas County, is that state court juries are selected from Dallas County residents only and tend to be lest prosecutorial oriented. On the other hand, federal juries for the federal court that sits in Dallas (the United States District Court for the Northern District of Texas) are chosen from residents of several of the surrounding Texas counties (some over an hour away) including many of the more conservative law and order areas. Still another reason that the chances of winning a case in state court can be significantly higher than in federal court is that Texas state law permits the suppression of evidence in more circumstances than federal law.

Third, suppose a defendant receives a ten-year sentence in state court and a different defendant receives a ten-year sentence in federal court. The defendant in state court might be paroled after serving only a couple of years of his sentence. On the other hand, parole has been abolished in the federal system and defendants serve 85 percent of their sentences.

Fourth, in state court, if a defendant enters a plea agreement with the prosecution, he will know exactly the sentence he will receive if the judge accepts the plea and he will often be sentenced on the same day they enter their guilty plea. On the other hand, most plea bargains in federal court require a defendant to plead guilty not knowing the sentence he will ultimately receive and the sentence will not be imposed until two-three months after the defendant enters his guilty plea. A defendant in federal court must rely upon the skill of his defense lawyer to accurately calculate the sentencing guidelines and, even then, the judge might give a harsher sentence than is provided for under the guidelines. Also a defendant in federal court will not be allowed to withdraw his guilty plea if, at the sentencing held a few months later, the sentence is harsher than his lawyer predicted.

Fifth, because the federal system is a lot more complicated, only a small percentage of criminal lawyers can effectively represent a defendant in federal court. Indeed, as we have explained elsewhere, a defendant charged with a crime in federal court must carefully question his lawyer regarding that lawyers experience in federal court and should ask the lawyer to give them a print out from the PACER system as to the number of defendants the lawyer has represented in federal court. Selecting a Criminal Defense Lawyer In any event, given the limited supply of criminal lawyers that can effectively represent a defendant in federal court, legal fees tend to be significantly higher for defendants charged with crimes in federal court.

There might be some advantages to being charged in federal court.

First, while this is a gross generalization, federal judges tend to be smarter than their state court counterparts. State court judges in Texas are elected and anybody with a law license is eligible to run. The President of the United States appoints federal judges for life. Thus, if a defendant has a technical legal argument, a federal judge might better receive it. Likewise, a federal judge does not have to run for reelection and might be less likely to make decisions based on public perception. Still, remember that, when it comes to sentencing, federal judges must give significant weight to the harsh federal sentencing guidelines.

Second, in state court, a defendant is required to post bail to secure their release prior to trial. In federal court, many defendants are released without being required to post bail. On the other hand, in state court bail is set in all cases, whereas, in federal court, if it is determined that a defendant is a danger to the community or a flight risk, bail might not be set at all and a defendant will be detained pending trial.

Generally speaking, a person has no control over whether they are charged in state court or federal court. Many crimes can only be prosecuted in state court (for example, except in limited circumstances or in cases involving federal lands, murders and assaults are only prosecuted in state court). For the most part, the type of offenses that generally overlap are: drug offenses, child pornography offenses, fraud offenses involving banks and embezzlement schemes. Usually it will depend on what agency investigates the case (e.g. the local police as opposed to the FBI, DEA, IRS and alike) as to where the case is brought. Nevertheless, on some rare occasions, if a lawyer gets involved prior to formal charges being brought, that lawyer might be able to influence the forum in which the charge is brought. This is an important reason to retain an attorney as soon as you find out that you are being investigated for a criminal offense.