Colorado Criminal Law – Understanding The Power Of District Attorneys and Prosecutors To Bring Charges – Pre-Filing Representation
By H. Michael Steinberg – Colorado Criminal Defense Lawyer – Attorney – Theft Crimes
Colorado Criminal Law -Understanding The Power Of District Attorneys and Prosecutors To Bring Charges – Pre-Filing Representation – Many Defendants when first charged in the Colorado criminal justice system believe it is the judge that is endowed with the highest authority in that system. The truth is it is the prosecutor – the DA – that has by far the most power to control that person’s fate.
An experienced Colorado criminal defense lawyer will fully understand the role of the prosecutor in the criminal justice system. Your lawyer will know that, in the words of United States Supreme Court Justice Robert Jackson
“The prosecutor has more power over life, liberty, and reputation than any other person in America. “
Few Limits On The Power Of The Colorado District Attorney
The power of “absolute prosecutorial discretion” is well known to those in the Colorado criminal justice system. The author, H. Michael Steinberg was a career prosecutor for Arapahoe and Douglas Counties for over 13 years and has not only exercised this power, he has defended his clients, for the last 18 years, against the unfair use of that authority.
The District Attorney not only decides who will be charged, what charges will be filed, but who will be allowed to plea bargain and the precise nature and type of plea bargain that will be placed on the table.
If the DA charges a person in criminal court with a crime, the prosecutor’s decision is final.
It is then up to the criminal defense lawyer to use the rights accorded by law to defend against those charges and to attack the prosecutor at every turn.
Like the decision to charge a case – the DA can also reject a case for prosecution and there is no recourse under the law for a person who believes they have been victimized. Stopping the filing of charges is one of the key roles a criminal defense lawyer can play on behalf of their client. This is commonly known as “pre-filing” representation.
Charging decisions are made behind closed doors. There is no public right to review the decision to charge – or not to charge a case. There is no system of “checks and balances” on the DA’s decision to charge and no right to appeal that decision.
The District Attorney answers to no one. He or she can destroy the lives of families or restore them – all with the flick of a signature. The power of the prosecutor is well understood by those of us who understand the criminal justice system..
Felony Vs. Misdemeanor/Petty Offense/Charging Decisions
Charging an individual is not only a function of the District Attorney’s discretion. In Colorado – the police have the right to charge all but felony cases. This is usually accomplished by the officer handing the accused a summons and complaint (a ticket).
After the arrest is made or the ticket issued, the case is filed with the court and a copy of the file is sent to the District Attorney’s office for prosecution. While the police have the initial right to charge relatively minor cases, the DA still makes the decision as to which crimes to prosecute, to what degree that crime or crimes should be prosecuted. If the case is weak, it is important to note, the DA has the authority to completely dismiss the case.
A Closer Look At The Power Of The District Attorney’s Office
One judge accurately described the power of the prosecutor as the person who “controls the doors to the courthouse.” As noted above while the DA has sole authority to file charges on each and every possible crime in the Colorado criminal code, the DA is not limited to the charges the police believe have been committed and can file charges that are more serious than originally investigated or less serious than the charges for which the suspect is arrested.
The full panoply of the constitutional rights of the Defendant do not fully attach until after the accused is charged. This is known as the “adjudicative phase” of the criminal process. During the “investigative phase” of the process, the accused’s rights to take part in the process simply do not exist.
During the “investigative phase” of a criminal case, the prosecutor has as much, or as little, direct contact with the person under investigation or his lawyer, as the DA wishes.
It is widely misunderstood that the alleged victim of a Colorado criminal case has the right to press charges or drop charges when they wish. In truth only the DA can “press charges” or “drop charges” in Colorado. The DA has the first and last word on the decision to file – or not file charges.
Are There Limits On Colorado Prosecution Discretion? – Prosecutorial Misconduct – The Abuse of Absolute Power?
While it may seem that Colorado prosecutors have complete and unfettered power, DA’s cannot:
- Charge a suspect with more offenses than can be proven in court.
- Charge a suspect without probable cause to arrest.
- Engage in “selective prosecution” – charging based on reasons that discriminate against the individual on illegal grounds.
They cannot:
- Withhold or delay in the release of exculpatory (innocence proving) evidence.
- Intentionally mishandle – mistreat or destroy evidence.
- Permit witnesses the DA knows, or should know are lying, to testify.
- Pressure witnesses to “stick to their stories” which the DA learns are false.
Understanding How Prosecutors Exercise Their Discretion
Prosecutorial misconduct can take the form of abusive investigative practices, illegal threats, misleading witnesses, fraud in the handling of evidence and even framing the innocent for political reasons. To fully understand how and when that misconduct can take place – one needs to look more closely at the process of bringing criminal charges.
The “charging decision” is complex and is comprised of a consideration of many factors -which factors may normally include:
- Often evaluating a massive amount of information arising from the investigation;
- Evaluating the suspect’s criminal history, the context of the crime, and the severity of violence involved – if any;
- Evaluating the suspect’s basic risk and lethality factors;
- Evaluating issues as regards victim safety;
- Evaluating issues relating to the alleged victims availability for hearings and trial and to assist the prosecution;
- Evaluating any prior incidents with this victim or similar victims; and
- Evaluating the impact on the parties if the case is rejected for filing or filed as a lesser crime;
The Use Of Police Arrest Reports In Making The Charging Decision In Colorado
Anyone familiar with the “charging decision” process understands that prosecutors base their initial charging decisions on the arrest reports filed with the prosecutor’s office. These reports are intended to summarize the facts terminating most often in the arrest of the susepct.
Obviously police officers and prosecutors work closely together especially on felony cases. The felony “intake DA” decides to file or not file charges almost exclusively on the investigative reports. These arrest reports are almost always one-sided. They normally almost never include even the appearance of factual balance in their recitation of the alleged facts and evidence.
Arrest reports alone can have a major impact on the charging decision and prosecution of Colorado criminal cases. It is the responsibility of the Colorado criminal defense lawyer to attempt – at the pre-filing stage of representation – to present the other side of the story BEFORE charges are filed.
Police reports are used by judges to decide the setting of bail; used by the DA to determine whether or even if to agree to a plea bargain; and used by the probation department to recommend the appropriate sentence in the case.
Rarely does the prosecutor conduct an “independent investigation” into a case before deciding the charge or charges to file.
The DA will rarely personally talk to the officers or victims and witnesses involved before filing charges. In fact in some jurisdictions in Colorado, an “intake prosecutor” is tasked to review hundreds of cases a week. These, often young prosecutors, make charging decisions that impact the lives of thousands of Colorado citizens and their decisions are often made on what amounts less than a cursory review of the police reports submitted by very busy police officers.
The Close Relationship Between Colorado Law Enforcement And District Attorney – Prosecutors
Some in the system feel as if the DA “rubber-stamps” the arresting investigator’s assessment of the case. The “political reality” is this – every time a DA rejects a case for the filing of charges, the prosecutor is implicitly, if not explicitly, insulting that filing police officer.
The truth is rather than risk a rift in their professional relationship, the DA most often will just “file the case” and let the “front line DA” prosecute with the flaws that may exist in the case.
The Motivations Of Prosecutors – Satisfying Their “Constituencies”
An example of playing to a political constituency is the Colorado minor shoplifting case.
In many city (municipal courts), the DA serves at the pleasure of the City Council. In jurisdictions such as Westminster, Aurora, Thornton etc., the City Prosecutors take very hard lines in cases that should result in much more compassionate plea bargains.
Young men and women with plans for college and beyond often make the stupid mistakes of youth and commit acts such as shoplifting. These cases are often not only weak, the amount of the theft very small, they should never be prosecuted To curry favor with tax paying store owners or “big box” retailers, city prosecutors often take a “zero tolerance” approach.
This kind of “over prosecution” is undertaken to please powerful civic groups and is nearly impossible to impact at the individual case level.
Why Some Cases And Not Others Are “No Filed” – Rejected By The DA For The Filing Of Charges
“Intake DA’s” decide not to file charges for some of the following reasons:
- The crime that could be charged is trivial or low priority (minor possession of controlled substance cases).
- There was an overt violation of the suspects constitutional rights. (The police officer’s violation of the suspects rights would lead the suppression of important and relevant evidence- making the case not provable beyond a reasonable doubt.)
- The aleged victim asks and this time the DA agrees that no charges should be brought
- The case should result in a “Civil Compromise” (money or property is involved and a mediated “civil compromise”where the suspect agrees to reimburse the alleged victim for money damages”.
- The DA wants to “flip” the suspect. (The suspect’s value to the DA is much greater as a witness who is available to testify at trial or to provide additional “intelligence to the DA’s investigation.
Why Retaining An Experienced Colorado Criminal Lawyer BEFORE Charges Are Filed Might Make Good Sense – Pre-Filing Representation
A Justice of the Supreme Court, in the case of Berger v. United States once wrote:
“While [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones.”
Once charged with a crime, it is often too late to reverse the process. Equally important and very real is the cost of not fighting the charge before charges are filed. Persons under investigation in criminal cases are in a very tough position. If they do nothing to stop the filing of charges – the costs of defense can rise astronomically.
Even when persons are wrongly accused – those persons face powerful pressures to accept a plea bargain. Many times this is the result of something commonly known as “overcharging” “Kitchen-sink” criminal complaints can consist of multiple charges which are often filed by unscrupulous prosecutors who believe that juries will find at least one charge upon which they can convict rather than acquit on all charges. Juries many times will seek to compromise among the charges in a lengthy indictment.
Another reason to begin to defend a criminal case under investigation is the damage to a person’s reputation in the community by the mere filing of charges. This damage cannot be understated. A defendant facing the filing of multiple criminal charges has every incentive to defend the case as early as possible – because the failure to do so may mean the loss of an entire life’s plan. For the Defendant the stakes are enormous, for the DA – who is immune from civil lawsuits in their prosecutorial capacity – the loss of one case is practically meaningless.
The decision should be to retain a good lawyer as soon as you realize you are under investigation and begin the fight as soon as possible.
Colorado Criminal Law – Understanding The Power Of District Attorneys and Prosecutors To Bring Charges – Pre-Filing Representation
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure, trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Understanding The Power Of District Attorneys and Prosecutors To Bring Charges – Pre-Filing Representation.