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    Bar is set high for winning Hyde claim

    By GRAHAM BRINK, Times Staff Writer
    © St. Petersburg Times
    published February 1, 2003

    TAMPA -- For eight years, Pennsylvania congressman Joseph McDade insisted he was innocent of charges that he did favors for defense contractors in exchange for gifts.

    Federal prosecutors were not out for justice, McDade said repeatedly. They simply wanted to "break" him at any cost.

    In 1996, a jury acquitted McDade of all charges. But the experience left him with a tainted reputation and a sizeable legal bill.

    That case helped spawn the Hyde Amendment, the law U.S. District Judge Steven Merryday used Friday to order the federal government to pay $2.87-million toward Steve and Marlene Aisenbergs' legal fees.

    In the mid 1990s, politicians often cited the McDade case as confirmation of suspicions that increased federal law enforcement resources had led to some overzealous prosecutions. Several members of Congress championed an idea to help curtail such situations by allowing exonerated defendants to collect their attorneys fees from the government.

    Originally, the proposed law was to apply only to exonerated members of Congress. Instead, Illinois Republican Henry Hyde, the House Judiciary Committee chairman, modified the language to extend the coverage to all defendants involved in such cases.

    Awarding attorneys fees in cases filed by the government was not unprecedented. In 1980, Congress had passed the Equal Access to Justice Act, allowing winning defendants sued by the government in civil cases to seek attorney's fees if the case was not "substantially justified."

    "If the government sues you, and you prevail . . . you are entitled to have attorney's fees and costs reimbursed. That is justice," Hyde said at the time. "Now it occurred to me, if that is good for a civil suit, why not for a criminal suit?"

    The Justice Department railed against the Hyde Amendment, arguing that it would chill investigations and allow notorious criminals who win an acquittal to collect a check from taxpayers. Most members of Congress didn't buy the argument and overwhelmingly passed the amendment in 1997.

    While the Hyde Amendment was patterned after the Equal Access to Justice Act, the two laws differed in substantial ways. In civil cases, the government had the burden of proof to show that the failed lawsuit was "substantially justified." The amendment placed the burden on the defendants, who had to show that the criminal case was frivolous, vexatious or brought in bad faith, a much higher standard.

    Winning a Hyde claim has proved to be an uphill battle. District courts have thrown out many of the claims. Many who won at the district level have seen their cases overturned by appellate courts.

    The Department of Justice, which vigorously contests most Hyde claims, did not answer repeated requests for the number and amount of previous payouts. Legal observers believe the number is likely less than a dozen, totalling less than $2.5-million.

    "(Federal prosecutors) fight like hell," said Hunter Sims Jr., a former federal prosecutor turned trial lawyer in Norfolk, Va. "They fought against paying us despite overwhelming evidence of misconduct."

    The $945,000 that Sims and other lawyers helped secure for their two clients in a botched bank fraud case is often cited as the biggest award the Justice Department has paid. Most successful cases are for much less money.

    "It's a law with a lot of uncharted territory, even now," Sims said. "It's not easy even if you have a solid case."

    Some defendants failed to file their claims in time. A few saw their cases kicked out because only those with a net worth under $2-million are eligible. Others lost out when they erred when trying to decide whether civil or criminal rules of procedure applied.

    "There are a lot of nuances to this law," said Miami defense attorney Bruce Udolf, who filed a pending Hyde claim last year. "We were aware of the law and still the learning curve was very steep."

    -- Times news researcher John Martin contributed to this report. Graham Brink can be reached at (813) 226-3365 or brink@sptimes.com .

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