Charging Decisions

1. Charging Decisions Helen Jackson Assistant District Attorney Harris County District Attorney’s Office Jackson_Helen@DAO.HCTX.NET

2. Jurisdiction Question First • Is the person a juvenile? • Or a juvenile when the offense was committed? • Is there probable cause a crime occurred? • Did it occur in your County or does the juvenile reside in your County ?

3. The Prosecutor has complete discretion to charge or not to charge. • May decline the case. • May refer it back to the law enforcement agency for more investigation. • In many counties, may refer it back to juvenile probation or refer to a diversionary program.

4. Harris County vs. Rest of Texas • In Harris County • Prosecutors answer calls from law enforcement 24 hours a day, 365 days a year. • No juvenile is taken into custody before a prosecutor approves acceptance of a charge. • District Attorney’s Office and Juvenile Probation are co-gatekeepers. • District Attorney’s Office files a petition on every juvenile offense, Class B and above. • No diversion programs or deferred programs prior to filing, deferred prosecution available after petition filed.

5. Prosecutor’s Job—Duty and Justice • Start by remembering that the prosecutor’s job is not to convict, but to see that justice is done. • “It shall be the primary duty of all prosecuting attorneys, . . . not to convict, but to see that justice is done.” CCP Art. 2.01

6. The Prosecutor Represents the Victims • The victims are citizens of your community who because of an offense believed to have been committed by a juvenile may be injured, fearful, or may have damages and be owed restitution for those damages. • As a prosecutor you are charged with seeking justice, whether anybody agrees with you or not.

7. Filing Deadlines • The prosecutor must make the decision whether to file the petition if the juvenile is detained within either: • 30 days for capital, first degree and aggravated controlled substances offenses; and • 15 days for all other offenses and violations of probation. • Juvenile Board may elect a shorter period of time.

8. The Charging Decision based upon information from Law Enforcement • The more information you have the better off you are in making a charging decision. • Train your law enforcement officers, especially your school police, beforehand regarding investigating juvenile offenses. • Annual training at least.

9. The Charging Decision and Law Enforcement (Cont.) • The prosecutor should consider as much evidence as is available, especially: • any statements by the victim, witnesses, and the juvenile, • any physical evidence in the case, • Including any photos • the victim and any relationship to the juvenile, • any damages, injuries, or restitution.

10. Training Points for Police Officers • Explain voluntary statements. • Explain written statements. • Explain noncustodial vs. custodial statements. • Explain about corroboration independent of the criminal act to substantiate a co-defendant's statement implicating others.

11. Contact the Victim Early • Determine correct name, address, phone number. • Determine how offense occurred, the manner and means. • Determine injuries or damages. • Determine restitution. • Determine feelings about prosecution and about the offense, including feelings about punishment.

12. Don’t Over Charge a Case • Misdemeanor Assault is rarely Injury to a Child. A felony is never a better charge if a misdemeanor is what happened! • A case should never be charged with reference to what is more likely to get the juvenile detained. • School cases in particular are frequently over charged by police officers.

13. Over Charging (Cont.) • Never stretch your facts to make a case that isn’t there. Decline a case when the evidence isn’t there, if the officer has fully investigated the case. • Don’t take a case with the idea that you will fix it later. • Educate your officers about what you need to prove the case. Train officers regularly, it is very difficult to have additional investigation completed once the report leaves the officer’s hands. Send the report back with a detailed request for additional investigation if it is deficient.

14. Examples of Offenses with Possible Charging Issues

15. Trespass on School Property • Trespass on School Property • Education Code Sec. 37. 105 and 37.107 –juvenile on grounds of school or school property (Class C). • Penal Code Sec. 30.05 – juvenile in school building. (Class B)

16. Drugs at School • Possession of a Controlled Substance • Differences between PG I, II, III, and IV and Possession of a Dangerous Drug. • Most common PCS substances: • Xanax (Aplrazolam) – PG III • Ritalin (Methylphenidate) – PG III • Adderall (Amphetamine) – PG II

17. Drugs at School (Cont.) • School drug enhancement paragraphs • No enhancements for Dangerous Drugs • Dangerous Drug is “drug unsafe for self-medication.” • Not in Schedules I – V or Penalty Groups 1 to 4 • If no prescription, Possession of Dangerous Drug. • If prescription but not in compliance with school policy, school rules violation is appropriate. • Good practice to call parent about substance found.

18. Drugs at School (Cont.) • Enhancement paragraphs for PCS and POM • Increase offense one level. • Drug-Free Zones: school premises, school bus, youth center. • Within 1,000 feet of premises.

19. Arson • Closely scrutinize arson vs. criminal mischief. • Intent? • Amount of damages and possibility of damages. • Look especially closely in school setting. • One paper towel ignited in metal trash can in tile bathroom not usually arson.

20. Indecent Exposure • Indecent Exposure • Must have some proof of element “intent to arouse or gratify the sexual desire of any person.” Penal Code Sec. 21.08. • If no proof of each element, possible Class C offense of Disorderly Conduct.

21. Aggravated Sexual Assault • Age • If both parties under 14 years old, which to file on? • If consensual? Neither unless other circumstances. • If nonconsensual? Physical evidence to confirm. • If age difference? If between 12 year old and 4 year old, treat as other aggravated sexual assault cases.

22. Aggravated Sexual Assault (Cont.) • Victim • Relationship with juvenile. • Be aware of attempts by victim to downplay or to exaggerate juvenile’s role if close relationship. • Difficulty with young victims in differences between “inside” and “outside”, as in penetration or contact. • Interviewers trained to use objects as examples. • Watch non-verbal actions of child, is the child making motions with his hands to indicate what he is trying to articulate?

23. Aggravated Sexual Assault (Cont.) • Aggravated Sexual Assault, Sexual Assault, Indecency with a Child, and Indecent Exposure. • All offenses might be present when reviewing a case with multiple victims and dates of offense. • Determining date of offense with young victims. • Trained interviewer use landmarks throughout year and holidays or events. • Date of outcry as last possible, by definition “on or before.”

24. Assault on a Public Servant • Assault on Public Servant • Public Servants include school personnel performing government functions, these cases should be filed as felonies. Penal Code Sec. 22.01(b). • Includes teacher, teacher’s aide, administrator, etc.

25. Resisting Arrest or Interference with Public Duties • Resisting arrest: • Active force must be used against the law enforcement officer. Penal Code Sec. 38.03. • If physical contact or moving away from officer only, Interference with Public Duties. Penal Code Sec. 38.15 • If speech only or bad attitude only, neither offense is appropriate.

26. Injury to a Child • Injury to a child, Penal Code Sec. 22.04. • Not appropriate offense unless: • Juvenile is more than three years older than victim. • It is an affirmative defense if juvenile is not more than three years older and victim is under 14.

27. Terroristic Threat • Difficult for schools not to overreact but make sure elements of offense are present. • Declaratory statement. • Difference in “If I fail this test, the entire school will dress in black for your funeral” and “After this test, I will kill you.” • Imminence of threat of violence. • Difference between “next Tuesday” and “one of these days.”

28. Terroristic Threat (Cont.) • Communicate threat to victim. • Communication can take different forms but if e-mail or written: • Consider how you prove the juvenile was at the keys of the computer and not someone else using juvenile’s screen name or computer or phone? • Identify juvenile’s writing?

29. Exhibition of Firearms • New offense in Education Code, section 37.25 • 3rd degree felony • Intentionally use or exhibit or threaten to use or exhibit a firearm • Public or private school or premises or school bus • Cause alarm, injury to another or damage property.

30. Weapons at school • Possession of prohibited weapon on school premises, Penal Code Section 46.04(a)(1) or • Unlawful or prohibited weapon in a weapon-free school zone, Penal Code Section 46.11(a). • Depends on facts: • Within 300 feet of school premises or in a building? • Type of weapon?

31. Family Violence • Family violence cases require more thought prior to charging than just the strength of the case you are reviewing. • You may file these cases with weaker evidence and less witness cooperation because of family and public safety considerations. • May include assault, aggravated assault, injury to a child, injury to elderly, terroristic threat, and criminal mischief.

32. Other Preliminary Issues in Juvenile Proceedings • Certification or waiver to adult court • Respondent over 18 • Determinate Sentencing • Grand Jury approval

33. Straight Certification Petition • If juvenile is now over 18, screen to determine if certification available: • Offense? • Age at time of offense? • Due diligence by State? • If file straight certification petition, ensure paperwork is in place for juvenile to be held in jail, not juvenile detention facility.

34. Straight Determinate Sentencing Petition • Take to Grand Jury for approval before filing petition based on: • Juvenile’s age • Seriousness of offense • Availability of Grand Juries

35. School Notification • Code of Criminal Procedure, Section 15.27 • Notice on detention or adjudication of juvenile • Education Code, Chapter 37, Subchapter I • Sex offender school placement decision

36. School Notification • If case is declined for lack of probable cause after initial acceptance, notify school immediately. • Typically students with pending criminal cases face being placed in an alternative class or school. • This placement often takes the student out of extracurricular activities and moves them to another campus.

37. Charging Problems that are NOTProblems for Disposition Not Charging: • Seriousness of offense. • Injuries/ Damages/Large or small amount of restitution owed. • Age of the Juvenile at the time of the offense. • Lengthy delay between act and arrest.

38. Charging Problems that are NOTProblems for Disposition Not Charging: • Victim’s desires. • Restitution—Should get it if available, if not consider community service restitution. • Dismissal—a variable to be considered along with juvenile’s history, community safety, relationship with the juvenile, availability of treatment alternatives.

39. Charging Problems that are NOTProblems for Disposition Not Charging: • Sex Offender Registration consequences. • Juveniles with mental illness or mental retardation. • Difference between lack of responsibility/fitness to proceed and placement in special education classes by school district. • Not usually a determination that can be made by the officer on the scene.