Saturday, January 16, 2010

Travis prosecutors will vet cases 24-7

Travis County DA Rosemary Lehmberg announced yesterday her office would begin staffing prosecutors 24-7 to more rapidly vet cases brought by police, reported Steve Kreytak at the Austin Statesman:

Travis County District Attorney Rosemary Lehmberg said today that she would soon assign a prosecutor to work overnight with police to evaluate new arrests and ferret-out any that are not legally and factually sufficient.

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With the announcement Lehmberg, at right, is embracing a strategy that has been adopted by other large Texas counties but which she once said would not justify the cost in Austin. Lehmberg said she now believes the system could be implemented without additional funding and would strengthen prosecutions, provide immediate justice and avoid costly jail stays for defendants who would likely never be convicted.

“Even with good cases there are suggestions we make about gathering evidence and taking witness statements that always make it a better case,” Lehmberg said in an interview. “For those cases that are patently insufficient that individual shouldn’t be kept in jail.”

Lehmberg said the staffing details of the expanded arrest-review program have yet to be determined, but she hopes to initially have a prosecutor working at the downtown courthouse, jail and booking complex during the early morning hours after the bars close. Lehmberg said she would staff the expanded arrest-review system by asking prosecutors in her office to change their work hours, not by paying overtime.

Currently prosecutors are available on call overnight. Every morning at 7 a.m. a prosecutor reviews the probable-cause affidavits and police reports gathered since the close of business the day before, Lehmberg said.

“Hopefully it will make our jobs more efficient in the stream of cases from intake to trial,” she said, “and will give the police the kind of immediate feedback we want to give them on their cases.”

Lehmberg also said Friday that she plans to develop a deferred prosecution program to give some minor first-time felony offenders a chance to avoid a felony conviction if they satisfy certain requirements, such as completing community service or paying restitution.

This change will no doubt assist at the margins with Travis County jail crowding and reduce front-end pressure on court dockets. Until an excellent recent report by the Waco Tribune-Herald, I hadn't realized what a large percentage of arrests by police don't result in prosecution - around half, in some jurisdictions. If the state won't be bringing charges, it makes a lot more sense for prosecutors refuse these cases up front instead of dismissing them months later after the county has paid for jail costs, indigent defense, court expenses, etc..

I don't know what is the rate for arrests that don't result in prosecution in Travis (or for that matter, in other big Texas counties), but if it's anywhere close to the rates the Tribune found in mid-sized jurisdictions, that's a lot of wasted resources on cases that will never be prosecuted.

In Harris County, which has operated under a similar system for years, police must get every arrest pre-approved by prosecutors who are on call 24 hours a day, 365 days per year to evaluate cases. (See Murray Newman's description of Harris' system here and here.)

The other large Texas jurisdiction doing this is El Paso. There, because the county sheriff initially refused to use the direct filing system when DA Jaime Esparza first established it, for a time there existed a sort of natural comparison study that showed how much time can be saved: In direct-filed cases, prosecutors received offense reports within seven hours of an arrest; in cases processed with traditional methods, it took 19 days to get to that point, says Esparza. That's a huge difference.

Those interested may also want to check out a 2006 study (pdf) by the Texas Task Force on Indigent Defense analyzing this approach.

This tactic makes sense from every perspective and I'm glad to see Travis County finally embracing the idea.

10 comments:

Donald said...

LOL I sent you an email and then found that you had already posted this article on the blog.

I'm left wondering if there's a list of "minor felonies." If you're a defense attorney like me, that's news you can use.

Anonymous said...

Anything that can lower the cost to taxpayers is probably something worth trying, but this sentence stood out to me:

“For those cases that are patently insufficient that individual shouldn’t be kept in jail.”

Says the woman who has fought like hell to prop up the patently insufficient yogurt shop murder cases only dropping the charges when she had no other choice (and still, reportedly, refusing to expand the DNA search to include other possible suspect unrelated to Springsteen and Scott).

Anonymous said...

Williamson County adopted a direct file system several years ago.

Anonymous said...

Something that all counties should be doing so they can meet the probable cause standards set out in the Texas CCP at the intitial hearing before the judge who administers the Miranda warnings, detrmines indigency and if a court appointed lawyer is required and setting of bail.

This is suppose to be done statewide but is not.

Retrired LE

Anonymous said...

If you really want prosecutors to extend their influence into this stage of a case, then extend absolute immunity. Many offices are reluctant to provide such advice because the courts (and suing litigants) drag the prosecutor into the mix when alleging mistakes.

Gritsforbreakfast said...

9:01, they still have qualified immunity for those activities. That's the same as police officers, and they still do their jobs.

Why should a prosecutor have MORE immunity for wrongly advising an officer than the officer has for following their advice? That makes no sense.

FWIW, when the Obama Administration took the same position recently I derided them for espousing a "doctrine of prosecutorial exceptionalism." Qualified immunity supplies plenty of protection for all but egregious misconduct.

Anonymous said...

"Travis County District Attorney Rosemary Lehmberg said today that she would soon assign a prosecutor to work overnight with police to evaluate new arrests and ferret-out any that are not legally and factually sufficient."

"Legally and factually sufficient",terms for "probable cause."

I was always under the impression that determination of probable cause lies within the magistrates authority and not a prosecuting attorney.

Does a prosecuting attorney have the authority to order the release of an arrested indivudual? Again, I was under the impression the sheriff of the county is responsible for the custody of those brought to jail and that he is not to release any individual until so ordered by a magistrate or the defendant makes bail.

If anything, during the initial appearance before the magistrate, a prosecutor sghould be available for the probable cause hearing and at that time could recommend to the court the charges be dropped or dismissed due lack of insufficient evidence or any other reason they voice, but the final determination as to whether probable cause existed for the arrest, is the responsibility of the magistrate.

Kimberly Houser said...

I am all for having prosecutors easily accessible to the Austin Police Department and keeping people out of jail who shouldn't be there. I do think that the prosecutors should get overtime, however, because this does seem to go beyond the call of duty. I am sure they are already overworked.

Boyness said...

In other words, a DA will be on duty 24/7, if necessary, to spit-shine a turd. Dont expect an end to sloppy, lazy law enforcement, just expect the lies to become more concise and believable for the judge.

Ad to retired LE > Texas doesnt give a SHIT about probable cause and wont as long as the Wig is Governor.

Boyness said...

Gritsforbreakfast said...

9:01, they still have qualified immunity for those activities. That's the same as police officers, and they still do their jobs.

Why should a prosecutor have MORE immunity for wrongly advising an officer than the officer has for following their advice? That makes no sense.

FWIW, when the Obama Administration took the same position recently I derided them for espousing a "doctrine of prosecutorial exceptionalism." Qualified immunity supplies plenty of protection for all but egregious misconduct.

1/17/2010 10:08:00 AM
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BECAUSE Grits, it's not about facts or the truth it's about whatever BS the state THINKS they can prove in one of our kangaroo courts. You know better Scott.