Monday, August 1, 2011

Charging is as charging does.

Cops on the beat have to make a lot of decisions: whether to use lights and sirens, whether to chase or just follow, warn or arrest, go glazed or creme-filled.

I don't envy them because I know there are ranks of senior officers, ADAs and grand jurors waiting behind their (our) desks, ready and willing to second-guess. Much of my job is armchair quarterbacking, in fact, and I always try to remember that it ain't so easy when you're in the moment.

One area of second-guessing that is a constant complaint of defense lawyers is the issue of over-charging. Let me give you an example:

Joe Knickerbocker goes into the pharmacy.
He pockets a tube of toothpaste and starts to leave without paying. A clerk sees him and tries to stop him, standing in the doorway. Joe shoves past him, swinging at the clerk with his prosthetic arm (did I mention the prosthetic arm?).

Here are the charging options:

Theft (class C misdemeanor, based on value of the toothpaste).
Assault (class A misdemeanor, based on the shove that caused pain).
Robbery (2nd degree felony, based on the Theft + Assault).
Aggravated robbery (1st degree felony, based on Robbery + Prosthetic [ a stretch, I grant you])

So once arrested Joe faces anything from a fine (not to exceed $500) to life in prison.

Quite a range, I think you'll agree.

Now, usually the cop on the scene charges what he thinks is appropriate, erring on the side of caution (i.e. public safety) until someone with more experience can double-check his work. And ultimately, the grand jury makes the final decision on the charge when they indict Joe.

So, what I normally see is a charge that allows some room for plea bargaining: if Joe is sorry, hasn't much in the way of a violent criminal history, didn't really hurt the clerk, and the clerk is fine with a more moderate punishment, then there is no way in heckeroony that he'll be convicted of aggravated robbery. Or even robbery.

But every now and again I get a case where the arresting officer didn't have all the relevant information and consequently the charge is much less than I would expect.

Interestingly, on these occasions I get strong-armed by hopeful defense lawyers wanting to plead their guy (or gal) to the crime they were initially charged with, using the patrol officer's decision as evidence of what their client actually did. I have seen this a few times and I always point out that if the cop who arrested Joe believed it to be aggravated robbery, is that evidence that is actually was aggravated robbery?

Course not.

The problem arises at trial, when the poor beat cop gets the,
"If this is such a big deal, why didn't you arrest him on the spot?"
"He's facing this count of double-extra-chocolate-covered felonious badness, but you only charged him with mildly-irritating-misdemeanor-annoyingness."

And that's just me asking the questions.

I object at trial, if I can, because I think it's confusing to a jury who charged what with whom and when, and I certainly don't get to ask a cop's opinion of what he thinks the charge should be.

The evidence, I think, should speak for itself. And at the end of the day, if the defense lawyer and I can't agree we have that wonderful band of folks known as a jury.

They are, indeed, the last word on charging decisions. And who better than our fellow citizens to do that job?


  1. Awesome post. I've always wondered about this. I live in Philadelphia and a detective once told me that as a rule, they charge people with everything they can possibly think of just to cover their asses. Very interesting stuff to me. Every time I have to check someone's criminal history/arrest record there are always a buttload of charges and they're usually only prosecuted on one or two.

  2. Thank you for this explanation.


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