Now, Where Was I. . .
Well, OK, after reviewing where I was when I last posted (really, I want to update this more than once a week, the day job just hasn't cooperated) we were talking about how a request for a warrant is review and authorized. So far, we've talked about two, general, standards for authorization of criminal charges. The first is mere probable cause that the suspect committed the crime. The second, and most common in my experience, is the likelihood of proving the case to a jury, beyond a reasonable doubt. There is a third standard that may be used, depending on the philosophy of the head prosecutor. In my own mind I call it the "certainty of conviction" standard.
Now, whenever a jury is involved, there is no such thing as a sure thing. There just isn't. In our system of adversarial trial there is this little doctrine that prosecutors hate to talk about called jury nullification.
Stand By, Digression Ahead!
What that means, essentially, is that the jury, as the conscience of the community, can ignore its oath and acquit the defendant regardless of how overwhelming the evidence against him is. The most famous example of mass jury nullification involves the fugitive slave law of 1850. This law required all citizens to assist in the recapture of fugitive slaves, regardless of whether slavery was legal in state where the alleged offense occurred or not. Northern juries routinely acquitted abolitionists who were charged under that law. There are legal historians who believe the modern judicial hostility to jury nullification originated in this era. But see this site for more than you probably want to know about the subject. Suffice it to say, a jury can acquit for any reason, or for no reason, and the verdict is immune to attack.
Brace For De-Digression!
As I was saying, there is no 100% certain verdict in any trial, let alone a criminal prosecution with the beyond a reasonable doubt burden of proof. But an experienced trial attorney, assisted by experienced investigators, can generally come up with a pretty fair idea of what a typical jury in her jurisdiction will do. When applying this standard, review and authorization may take substantially longer, but the final decision to charge is going to be as close to a lock as it ever gets. So, given the time and effort it takes to apply this standard, when would an over-worked, under-staffed government bureaucracy ever invoke it?
There are those cases where an elected prosecutor (and almost all of them are elected) will tread very carefully before authorizing a felony warrant. Some examples, cases where prominent local politicians or citizens are accused of particularly nasty crimes, cases where a bad guy winds up dead at the hands of a citizen under suspicious circumstances, cases were the victim is a popular or highly sympathetic figure, or the suspect is a popular or highly sympathetic figure, that sort of thing. Basically, cases where you need to win if you charge it.
On the other hand, some times the suspect is so well known, etc. that your discretion not to charge is severely limited. Does anyone think O. J. wasn't going to be charged with something after the slow-speed chase?
Next time: What happens after the darn thing is authorized?
Friday, October 29, 2004
Thursday, October 14, 2004
Felony Warrants, Get Your Felony Warrants Right Here
So What Really Happens
to turn Sammy Suspect into Danny Defendant? The short answer is that the cops convince the reviewing APA that s/he should authorize the issuance of an arrest warrant. The long answer follows.
There are, in practice, a number of different standards that can be used to determine whether a warrant should be authorized. They boil down to three, in my experience. The lowest, and the one I've never heard of being the official policy of any of the offices I'm familiar with, is probable cause. Probable cause is the standard applied by the judicial officer who issues the warrant once it has been authorized by the prosecutor. It would seem logical to use the same standard, more or less, for authorization in the first place, you'd think. But it's really not.
Most of the time, when a felony warrant request hits the desk of some lucky APA it's an indication that the police think the investigation is complete. There are, obviously, exceptions. But for the run of the mill felony, e. g. a breaking and entering or a serious assault, when the warrant request is submitted, the police don't expect to do much more than serve the warrant and any subsequent subpoenas for court proceedings. This belief is not always shared by the reviewing APA.
Sometimes the problems are minor administrative or clerical glitches like an incomplete witness list or a missing criminal history. Sometimes they are major administrative or clerical hitches like a missing report from an other officer or an assisting agency. And sometimes they are just plain screwed up. Examples of the last category are eye witnesses who were not interviewed, controlled substances with no weight, or stolen property with no description or value.
If the standard for authorization is only probable cause, the same probable cause that justifies an officer in making an arrest, then it is more than likely that warrants could be (hell, would be) authorized before the investigation is complete. And an authorized warrant most generally rings the final bell on any run of the mill investigation.
Don't misunderstand me on that. I'm not saying there is never any follow-up investigation once an APA puts her Joan Hancock on a warrant authorization. There often is. Serious felonies like murder, rape, large scale theft/embezzlement, major weight drug offenses, and the like are going to involve active investigations right up to the time the judge charges the jury. But a B and E of a store, a low grade concealed weapons charge, minor drug possession, petty theft and similar property crimes are not likely to inspire CSI-like investigative efforts. There is a lot of crime out there, and a limited number of police officers to investigate it. Add in local idiocies like a major department that does not allow uniformed officers to do any investigation beyond the immediate incident report, and you have a serious, on going resource allocation problem. This is just a fact of life for police supervisors and prosecutors alike.
So what does a canny boss prosecutor do to minimize the number of cases that are authorized without sufficient investigation? He institutes a policy of only authorizing cases that, at the time of authorization, in the opinion of the authorizing APA, can be proved to a jury beyond a reasonable doubt. The way our charging policy explains this is by directing the screening APAs to ask themselves this question: If you were to take this case, as it now exists, with the testimony of the witnesses, and the other evidence, conforming to what is represented in the police report, could you prove this case to a jury, beyond a reasonable doubt? If the answer is "yes" authorize the warrant. If the answer is "no" why is it "no" and what needs to be done to change the answer to "yes?"
When the answer is, in fact, "no" the reviewing APA writes a detailed note on the request to charge, explaining just what she thinks is necessary to get to "yes" and returns the package to the requesting agency.
More, anon.
to turn Sammy Suspect into Danny Defendant? The short answer is that the cops convince the reviewing APA that s/he should authorize the issuance of an arrest warrant. The long answer follows.
There are, in practice, a number of different standards that can be used to determine whether a warrant should be authorized. They boil down to three, in my experience. The lowest, and the one I've never heard of being the official policy of any of the offices I'm familiar with, is probable cause. Probable cause is the standard applied by the judicial officer who issues the warrant once it has been authorized by the prosecutor. It would seem logical to use the same standard, more or less, for authorization in the first place, you'd think. But it's really not.
Most of the time, when a felony warrant request hits the desk of some lucky APA it's an indication that the police think the investigation is complete. There are, obviously, exceptions. But for the run of the mill felony, e. g. a breaking and entering or a serious assault, when the warrant request is submitted, the police don't expect to do much more than serve the warrant and any subsequent subpoenas for court proceedings. This belief is not always shared by the reviewing APA.
Sometimes the problems are minor administrative or clerical glitches like an incomplete witness list or a missing criminal history. Sometimes they are major administrative or clerical hitches like a missing report from an other officer or an assisting agency. And sometimes they are just plain screwed up. Examples of the last category are eye witnesses who were not interviewed, controlled substances with no weight, or stolen property with no description or value.
If the standard for authorization is only probable cause, the same probable cause that justifies an officer in making an arrest, then it is more than likely that warrants could be (hell, would be) authorized before the investigation is complete. And an authorized warrant most generally rings the final bell on any run of the mill investigation.
Don't misunderstand me on that. I'm not saying there is never any follow-up investigation once an APA puts her Joan Hancock on a warrant authorization. There often is. Serious felonies like murder, rape, large scale theft/embezzlement, major weight drug offenses, and the like are going to involve active investigations right up to the time the judge charges the jury. But a B and E of a store, a low grade concealed weapons charge, minor drug possession, petty theft and similar property crimes are not likely to inspire CSI-like investigative efforts. There is a lot of crime out there, and a limited number of police officers to investigate it. Add in local idiocies like a major department that does not allow uniformed officers to do any investigation beyond the immediate incident report, and you have a serious, on going resource allocation problem. This is just a fact of life for police supervisors and prosecutors alike.
So what does a canny boss prosecutor do to minimize the number of cases that are authorized without sufficient investigation? He institutes a policy of only authorizing cases that, at the time of authorization, in the opinion of the authorizing APA, can be proved to a jury beyond a reasonable doubt. The way our charging policy explains this is by directing the screening APAs to ask themselves this question: If you were to take this case, as it now exists, with the testimony of the witnesses, and the other evidence, conforming to what is represented in the police report, could you prove this case to a jury, beyond a reasonable doubt? If the answer is "yes" authorize the warrant. If the answer is "no" why is it "no" and what needs to be done to change the answer to "yes?"
When the answer is, in fact, "no" the reviewing APA writes a detailed note on the request to charge, explaining just what she thinks is necessary to get to "yes" and returns the package to the requesting agency.
More, anon.
Tuesday, October 12, 2004
So, What Do Prosecutors Do, Anyway?
Other than crush crime, fight for truth, justice, and the American way, and help little old ladies across the street, you mean?
Based on questions I get from my business law students, I have the idea that a lot of people don't have a very good idea on how things work in the non-TV world of prosecution (law enforcement in general, for that matter) so I thought I would spend a few posts talking about how a typical mid-sized prosecuting attorney's office works. You have to keep a couple of things in mind. First, there are, generally speaking, 52 jurisdictions in this United States of ours. Fifty states, the federal government, and the District of Columbia. Maybe that's only 51.5 with DC. I don't know enough to know whether or not the District is really all that separate from the federal system in general. However you count them, that's a lot of different ways of doing things: defining crimes; setting procedural rules; establishing responsibilities for different functions -- heck, just deciding what the functions are and who is going to do what is a big deal.
Second, within most of those jurisdictions, there are smaller units of government that, in most cases, are the ones charged with providing front line criminal justice services. Most of us call these things "counties" (parishes in Louisiana, boroughs in Alaska, and they don't count at all in Connecticut and Rhode Island) and there are a lot of them. Three thousand and thirty-three of them, plus 33 city/county combined governments, according to the National Association of Counties. This means, in addition to the gross differences between states, there are at least 3066 different ways of doing everything involved in the criminal justice realm. And I'm only talking about prosecutions on behalf of the State of {fill in the blank}, or the People of the State of {fill in the blank}, or the Commonwealth of {fill in the blank}. This does not take into account the prosecutions initiated by City, Town(ship), Village, or what have you attorneys and the infinite number of ways those things can proceed. So, consider that what I tell you about a a typical office here in the vast Midwest may not even be close to what your county/parish/ borough/city/etc. government does.
Job One
Based on questions I get from my business law students, I have the idea that a lot of people don't have a very good idea on how things work in the non-TV world of prosecution (law enforcement in general, for that matter) so I thought I would spend a few posts talking about how a typical mid-sized prosecuting attorney's office works. You have to keep a couple of things in mind. First, there are, generally speaking, 52 jurisdictions in this United States of ours. Fifty states, the federal government, and the District of Columbia. Maybe that's only 51.5 with DC. I don't know enough to know whether or not the District is really all that separate from the federal system in general. However you count them, that's a lot of different ways of doing things: defining crimes; setting procedural rules; establishing responsibilities for different functions -- heck, just deciding what the functions are and who is going to do what is a big deal.
Second, within most of those jurisdictions, there are smaller units of government that, in most cases, are the ones charged with providing front line criminal justice services. Most of us call these things "counties" (parishes in Louisiana, boroughs in Alaska, and they don't count at all in Connecticut and Rhode Island) and there are a lot of them. Three thousand and thirty-three of them, plus 33 city/county combined governments, according to the National Association of Counties. This means, in addition to the gross differences between states, there are at least 3066 different ways of doing everything involved in the criminal justice realm. And I'm only talking about prosecutions on behalf of the State of {fill in the blank}, or the People of the State of {fill in the blank}, or the Commonwealth of {fill in the blank}. This does not take into account the prosecutions initiated by City, Town(ship), Village, or what have you attorneys and the infinite number of ways those things can proceed. So, consider that what I tell you about a a typical office here in the vast Midwest may not even be close to what your county/parish/ borough/city/etc. government does.
Job One
So, what is the number one job of the prosecuting attorney? Well, like everything else in the wacky world of criminal justice, it's subject to debate, but my pick (and it's my blog, so there) is the authorization of criminal warrants. Every other core function of the office flows from this activity. And here's where your mileage may really vary.
And why is that, exactly? Because every state has different ideas of how to get from the police investigation to the formal institution of charges against a suspect. This is most obvious in the prosecution of misdemeanor charges. Some states allow the police to issue a citation and proceed on that up to the point where the defendant enters a formal plea of not guilty. At that point the prosecutor becomes involved. Some states allow minor offenses or offenses of a specified type (e.g. traffic, or fish and game violations) to proceed to completion without the prosecutor ever being involved. Usually, these are offenses where there is no right to a jury trial. On felonies, things tend to be more similar from state to state. In part, this is because of constitutional limits on how long the police may detain a suspect before they must bring him before a judicial officer, and what the judicial officer is supposed to do once the miscreant is before him or her.
More, later.
Still Not Dead
Still Here, Head Down, Fingers Flying
Still doing heavy duty, production writing at work. Five co-defendants, convicted of felony assault. One of the five, the most egregious of the bunch, plead guilty. Four were tried in a single jury trial last year and convicted of various things. Three of the four claimed their right to appeal . This month, all three briefs trickled in. And the only thing they all have in common is a complaint about the scoring of one item of the sentencing guidelines. Well, there is some savings of time, over the long haul. I only have to do the statement of facts once, then adjust it based on which brief I'm replying to. But it can get boring in a hurry.
Still doing heavy duty, production writing at work. Five co-defendants, convicted of felony assault. One of the five, the most egregious of the bunch, plead guilty. Four were tried in a single jury trial last year and convicted of various things. Three of the four claimed their right to appeal . This month, all three briefs trickled in. And the only thing they all have in common is a complaint about the scoring of one item of the sentencing guidelines. Well, there is some savings of time, over the long haul. I only have to do the statement of facts once, then adjust it based on which brief I'm replying to. But it can get boring in a hurry.
Tuesday, October 05, 2004
What's Up With Mister DA
MIA No More
Geez, it's been awhile since I posted, hasn't it? To the one or two faithful fans, my apologies. I know how irritating it is to keep hitting a site and find it hasn't been updated FOREVER!
I've been doing head down writing the last two weeks, and the last thing I've wanted to do when I got home was strap on another monitor and keyboard and strain the eyes a bit more. If you know what I mean. Today, I finished 99% of a big deal application for leave to appeal to our state supreme court (all that's left is formatting stuff and getting the proofs of service right), so I took a little break and started to inventory the library. Ah, restful. At any rate, I feel up to a few lines here, so no one thinks I've died. Or gone over to the dark side, or something.
Ken Lammers sent me an invitation to guest blog on his CrimLaw blog while he was away, but something in my privacy software grunged it, so, I guess I missed my chance at fame and fortune. Thanks, anyway, Ken.
Let me tell you about last Friday. You might remember my comment about some days you eat the bear. . .? Well, Friday last was clearly one of those days the bear looks forward to.
Recall the two day adventure I described at the Wonderful World of Oz we like to call our intermediate appellate court? Well, the opinions showed up in the morning e-mail last Friday. This is all of what, three weeks since oral argument? If that's what you can call it. Actually, this is about a week longer than usual. More proof that the panels write the opinions well before the argument. but let me back up a step.
Friday was the day set for my augment in one of our felony parts, regarding an appeal of a arraignment court decision on a probable cause hearing. In brief, our defendant either clotheslines or grabbed and threw on the ground a genial drunk who was wheeling by on his bicycle. The drunk hits the ground, head first, and doesn't move. Defendant runs off and bystanders call 911. The victim is messed up -- a lot. He's currently a resident of an extended care facility and will probably be there for a long, long time. The magistrate declined to hold our defendant for trial on the felony assault charge, opining that he didn't believe there was any intent to injure the victim. Sigh.
In our state, intent is almost always a jury question. As long as there is some evidence that there was a felonious intent, the magistrate is supposed to send the matter to the felony court. Or, in this case it could have been held as an aggravated battery, a one year misdemeanor. That is, the maximum sentence of confinement could not exceed one year in the County jail. Our least favorite judge did neither, dismissing the whole matter out of hand. At that point, we have an appeal of right to the general trial court. Friday was our day to argue.
Opposing counsel is a mellow general practice lawyer who is one of my contemporaries from undergraduate days and who actually married one of my high school classmates after we graduated from college. We lost touch, except for one or two high school reunions when he would accompany his wife back to the glory days of our misspent youth. Then, here he is, practicing law, right where I wind up, practicing law, 27 years after college.
Like I said. He's pretty mellow about it, as is the judge, another more or less contemporary of mine, by age if nothing else. We're the only thing on his docket this morning so, after we run down the court reporter, we get on with it.
A lovely, civilized 'argument' with the dispute clearly stated and a pretty good possibility I'm going to win. What a lovely start to a slow day. Ha!
I'm back in the office about 20 seconds before my secretary and the juvenile secretary (she's the secretary for the juvenile division, if you were wondering) corner me and want to know if I've seen the opinions. Now, I went from the parking lot to my office, picked up my case file, and went directly to the judge's chambers and from there to the courtroom and now I am standing in the door between the victims' rights office and the main corridor of the suite. When, exactly, I am to have seen anything is a mystery. At least to me.
Anyway, no surprise on the parental right termination case - reversed, remanded, etc., etc. On the evasive drunk, kind of disappointing - drunk driving convictions reversed, resisting arrest reversed, failure to report a serious accident, affirmed. Sigh. I wish they would have asked questions. Apparently, the panel felt if the officers had time to get a blood draw search warrant after they winkled the defendant from his den, they had time to get a search warrant for him before prying him out of his hole. Not a lot of weeping and wailing and gnashing of teeth on this one - the judge lo-balled the sentence and, as far as I know, defendant was discharged from probation a couple of months ago.
Today, the bear seems to be tucking in his bib and settling in for a good meal. Ah, well.
Geez, it's been awhile since I posted, hasn't it? To the one or two faithful fans, my apologies. I know how irritating it is to keep hitting a site and find it hasn't been updated FOREVER!
I've been doing head down writing the last two weeks, and the last thing I've wanted to do when I got home was strap on another monitor and keyboard and strain the eyes a bit more. If you know what I mean. Today, I finished 99% of a big deal application for leave to appeal to our state supreme court (all that's left is formatting stuff and getting the proofs of service right), so I took a little break and started to inventory the library. Ah, restful. At any rate, I feel up to a few lines here, so no one thinks I've died. Or gone over to the dark side, or something.
Ken Lammers sent me an invitation to guest blog on his CrimLaw blog while he was away, but something in my privacy software grunged it, so, I guess I missed my chance at fame and fortune. Thanks, anyway, Ken.
Let me tell you about last Friday. You might remember my comment about some days you eat the bear. . .? Well, Friday last was clearly one of those days the bear looks forward to.
Recall the two day adventure I described at the Wonderful World of Oz we like to call our intermediate appellate court? Well, the opinions showed up in the morning e-mail last Friday. This is all of what, three weeks since oral argument? If that's what you can call it. Actually, this is about a week longer than usual. More proof that the panels write the opinions well before the argument. but let me back up a step.
Friday was the day set for my augment in one of our felony parts, regarding an appeal of a arraignment court decision on a probable cause hearing. In brief, our defendant either clotheslines or grabbed and threw on the ground a genial drunk who was wheeling by on his bicycle. The drunk hits the ground, head first, and doesn't move. Defendant runs off and bystanders call 911. The victim is messed up -- a lot. He's currently a resident of an extended care facility and will probably be there for a long, long time. The magistrate declined to hold our defendant for trial on the felony assault charge, opining that he didn't believe there was any intent to injure the victim. Sigh.
In our state, intent is almost always a jury question. As long as there is some evidence that there was a felonious intent, the magistrate is supposed to send the matter to the felony court. Or, in this case it could have been held as an aggravated battery, a one year misdemeanor. That is, the maximum sentence of confinement could not exceed one year in the County jail. Our least favorite judge did neither, dismissing the whole matter out of hand. At that point, we have an appeal of right to the general trial court. Friday was our day to argue.
Opposing counsel is a mellow general practice lawyer who is one of my contemporaries from undergraduate days and who actually married one of my high school classmates after we graduated from college. We lost touch, except for one or two high school reunions when he would accompany his wife back to the glory days of our misspent youth. Then, here he is, practicing law, right where I wind up, practicing law, 27 years after college.
Like I said. He's pretty mellow about it, as is the judge, another more or less contemporary of mine, by age if nothing else. We're the only thing on his docket this morning so, after we run down the court reporter, we get on with it.
A lovely, civilized 'argument' with the dispute clearly stated and a pretty good possibility I'm going to win. What a lovely start to a slow day. Ha!
I'm back in the office about 20 seconds before my secretary and the juvenile secretary (she's the secretary for the juvenile division, if you were wondering) corner me and want to know if I've seen the opinions. Now, I went from the parking lot to my office, picked up my case file, and went directly to the judge's chambers and from there to the courtroom and now I am standing in the door between the victims' rights office and the main corridor of the suite. When, exactly, I am to have seen anything is a mystery. At least to me.
Anyway, no surprise on the parental right termination case - reversed, remanded, etc., etc. On the evasive drunk, kind of disappointing - drunk driving convictions reversed, resisting arrest reversed, failure to report a serious accident, affirmed. Sigh. I wish they would have asked questions. Apparently, the panel felt if the officers had time to get a blood draw search warrant after they winkled the defendant from his den, they had time to get a search warrant for him before prying him out of his hole. Not a lot of weeping and wailing and gnashing of teeth on this one - the judge lo-balled the sentence and, as far as I know, defendant was discharged from probation a couple of months ago.
Today, the bear seems to be tucking in his bib and settling in for a good meal. Ah, well.
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