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Just Because You Can, Doesn’t Mean You Should – Revisited

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One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.

 


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Just Because You Can, Doesn’t Mean You Should

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Sure, a prosecutor can choose to prosecute a case, but that doesn’t always mean he or she should.

Trace Cocaine Cases

Years ago, then Harris County District Attorney Pat Lykos made the choice to decline prosecution of trace amounts of cocaine. This didn’t mean she approved or condoned cocaine possession. It didn’t mean cocaine cases were not prosecuted. It simply meant she chose to use her limited resources for more serious cases, cases involving more than just residue. Under her watch, trace amounts of cocaine meant residue left on a baggie or pipe; something that was may not even be seen, and certainly was not capable of being used, but could be tested for or seen through a microscope. While she was widely criticized by her opponent in the next election cycle for her position, it made sense and it freed up judicial resources and taxpayer money to focus on more serious crimes.

Since her defeat and the return of the prosecution of trace cases, we saw a large increase in these cases which necessitated the creation of a separate “state jail court” as we called it. This extra court had to be staffed and operated seven days a week just to handle these cases. This court had to be funded by the tax dollar. In this court, cases would languish on the docket, with defendants mostly sitting in jail unable to afford a bond. Defendants in this court were rarely offered treatment and simply moved on from the county jail to the state jail, eventually to return to Harris County and begin the cycle again.

Perhaps it is time once again to consider whether or not these cases should be prosecuted.

Interestingly, with that extra court tied up on such relatively small cases, we saw other courts becoming backlogged as well. This October, the state jail court was repurposed and became what we call “impact court.” Impact court is a trial court meant to ease the backlog of felony cases, many of which are sexual assaults, robberies, and murders. Certainly seems we should have focused resources on these cases all along and not worried so much about trace cases.

Small Marijuana Cases

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, told the Texas Tribune in June, misdemeanor courts are now a mess and are backlogged with more than 10,000 marijuana cases. To ease this logjam, the District Attorney created its First Change Intervention Program aimed at removing non-violent low-level marijuana cases from the courts.

Not only was this program designed to divert cases from the court, it also sought to easy jail overcrowding by diverting these non-violent citizens from the local jail.

The program, in terms of a participant’s completion has been largely successful; however, in terms of diversion the program has been less than stellar. Diverting only about 19% of the program’s participants from the jail and the courthouse, the program has made little impact on these valuable resources.

Perhaps it is time to rethink prosecution of these cases. The District Attorney could easily force a diversion in almost all these cases but chooses not to.

Assault / Domestic Disturbance

Here, you will notice i didn’t use the term domestic violence. Certainly, true violence whether domestic or otherwise, should not be tolerated. But here, I’m talking about disturbances that are routinely prosecuted despite the participants’ desire.

All too often we see cases where the police are called to a disturbance. Emotions are usually high as the police arrive and seek to determine what happened. Perhaps the two participants in the disturbance were upset. Perhaps they were arguing. Perhaps things got out of hand and one participant pushed the other back. Perhaps that push, meant to place distance between the two, resulted in one sustaining a red mark to her arm. That red mark is most often referred to as an injury and the other person is arrested, taken to jail, and prosecuted. Perhaps one party stretched or embellished in a moment of anger.

Now, should the “injured” party settle down and notify the prosecutor that things just got out of hand and she really doesn’t want her companion to be prosecuted, that case is immediately sent to the “family criminal law division” for follow-up and continued prosecution. In effect, the injured party is given no say in whether or not the prosecution goes forward.

Many of these incidents involve no real injury and no repeated violence. Yet, they are prosecuted.

Again, not that prosecutions of abuse should be ignored, but many of these instances do not amount to abuse. They are single instances of heated arguments.

Prosecutions, while great for business, must be taken with care and insight into the expenditure of valuable resources. Prosecution: just because you can, doesn’t mean you should.


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