The McLennan County District Attorney’s Office does not pursue half of all felony cases recommended by law enforcement officials, with prosecutors dropping most of those cases before formal charges are filed.
At first glance, that statistic might appear to bolster the complaints of some local police, who frequently grouse in private about the prosecutors’ handling of cases. The perception that McLennan County District Attorney John Segrest and his staff dismiss too many cases is one reason the Sheriff’s Law Enforcement Association of McLennan County has decided not to support Segrest in next year’s election. The group, along with the Waco Police Association, has endorsed local defense attorney Abel Reyna, who is a candidate for the post.
But criminal justice experts say a 50 percent nonprosecute rate could be a sign of an exceedingly well-run office just as easily as it could be a cause for concern. What is truly troubling is that in most jurisdictions, voters don’t have the information they need to judge that, even at election time, they said.
“Prosecutors are way off the charts in terms of public officials who exert substantial discretion in ways we don’t know about or understand,” said Marc Miller, a law professor at the University of Arizona and co-author of a study about why prosecutors decline cases. “. . . The election of a prosecutor is potentially the greatest moment for us to focus on a discussion of what we expect our prosecutors to do. But the dialogue we carry on about prosecutors is trivial.”
The percentage of cases Segrest’s office accepts from area police departments and the sheriff’s office has never before been quantified. To get that number, the Tribune-Herald examined raw data from Segrest’s office from a three-year period that ended in 2008.
The Tribune-Herald also requested data from six other Texas counties of similar size for comparison purposes. Two counties produced extensive information, and a third provided limited data. The other three counties did not provide figures needed to make reliable comparisons with local numbers.
Overall, the data show that the percentage of cases pursued by McLennan County prosecutors is within average range.
Local prosecutors either refused or dismissed 50.3 percent of felony charges during 2006-08. For misdemeanor cases, there was a 39.7 dismissal/refusal rate, and for all cases combined, it was 43 percent.
By comparison, during the same three years:
* Prosecutors in Jefferson County, home to Beaumont and Port Arthur, refused or dismissed 45.7 percent of felonies, 40.4 percent of misdemeanors and 42.2 percent of all cases combined.
* Prosecutors in Wichita County, where Wichita Falls is the county seat, refused or dismissed 46.3 percent of cases with felonies and misdemeanors combined. Data were not available broken down by felony versus misdemeanor.
Nationwide, a handful of studies on particular jurisdictions have shown that nonfederal prosecutors discard roughly 25 percent to 50 percent of cases without filing formal charges. The total number of cases not pursued in those jurisdictions would be even higher once dismissals were added in.
The Tribune-Herald made requests to seven counties under Texas’ public information law. The requests asked for data relating to each county’s district attorney’s office from 2006 to 2008, with the focus being on information that could illuminate how many cases recommended by law enforcement were pursued by prosecutors.
Here’s a look at which counties information was requested from and what their response was:
• McLennan County — Detailed data were provided in raw form. The Tribune-Herald used computer software to sort the data.
• Bell County (Temple/Killeen)— Some data were provided in summary form. However, Bell County’s district attorney does not handle misdemeanor cases. Also, because of the presence of Fort Hood, many cases are handed over to military authorities. Because of those facts, the county’s data could not be reliably compared to local data.
• Brazos County (Bryan/College Station) — Some data were provided in summary form, but limitations in the data do not allow for reliable comparisons.
• Jefferson County (Beaumont/Port Arthur) — Complete comparative data were provided in summary form.
• Lubbock County (Lubbock) — County officials said the requested data could be retrieved through the county’s information-services contractor. However, the cost of doing so was estimated at more than $900. The Tribune-Herald abandoned the request because of the cost involved.
• Taylor County (Abilene) — Partial data were provided in summary form. The data allow for comparisons of how many cases prosecutors screen out before official charges are filed.
• Wichita County (Wichita Falls) — Complete comparative data were provided in a mix of summary and raw form. For the raw data, the Tribune-Herald analyzed it using hand counting. Multiple counts were done to ensure accurate figures.
To refuse or dismiss?
Where McLennan County appears to excel is in how many cases prosecutors refuse at the beginning rather than dismiss later. Refusal refers to prosecutors discarding cases before formal charges are filed. Dismissal occurs where charges are filed in court but later dropped.
Although media reports and police often refer to someone as being “charged” with a certain crime when that person is arrested, police do not file the actual charges. Charges can only be levied by prosecutors.
Of the cases not pursued by local prosecutors, most were refused up front rather than dismissed later. In the other counties examined, however, the opposite situation was true. Prosecutors in those jurisdictions dismissed many more cases than they refused at the outset.
The fact that Segrest’s office weeds out cases earlier is significant, said Miller and the other author of the prosecutor study, Wake Forest University law professor Ron Wright. The process by which prosecutors decline cases is one of the least-understood parts of the criminal justice system, they said, and is the function that makes them more powerful than judges, juries and perhaps the criminal code itself.
Prosecutors who use that power to screen out more cases up front are probably doing a better job than those who wait until later in the process, the experts said. For one thing, it saves the criminal justice system time and money, said Anthony Barkow, executive director of a New York think tank called the Center on the Administration of Criminal Law.
Aggressive screening also gives police a better picture of their cases, and if more investigation is needed, it makes more sense to let them know sooner than later, Barkow said. Plus, it is a more just way of treating people who are accused of a crime. The consequences are much greater when someone is formally charged, even if those charges are later dropped, he said.
“The person pays more of an individual cost,” Barkow said, noting that cases that are refused can be pursued later if circumstances warrant it.
Of course, prosecutors who refuse a lot of cases could be giving up on them too soon or otherwise not properly screening them, these experts said. A way to determine if that’s happening, they said, is to look at what percentage of cases a given jurisdiction pursues overall.
If a jurisdiction has a high refusal rate and a high dismissal rate, there may well be problems, Wright said. But if the percentage of cases refused and dismissed combined is about the same as peer jurisdictions, then prosecutors who discard cases up front likely have a better screening process, he said.
That is what is happening in McLennan County, the numbers show. Local prosecutors refused 42.2 percent of felony cases but only dismissed 8.1 percent. That combines for a total nonprosecute rate of 50.3 percent for felonies.
For misdemeanors, local prosecutors refused 28.4 percent of misdemeanors and dismissed another 11.4 percent, for a total of 39.7 percent not pursued.
That nonprosecute rate is roughly on par with other counties.
Segrest said he does not issue specific guidelines to prosecutors on how to screen cases. About the only guidance he gives them is to look at whether a crime has been committed and, if so, whether there is proof beyond a reasonable doubt and whether it is in the interest of justice to prosecute, he said.
It would be next to impossible to lay out anything more specific because each case is different, Segrest said. He relies on the judgment and training of the people he hires, he said, and is confident that prosecutors in his office know a good case when they see one.
“For every criteria you set, there are going to be 10 exceptions,” he said.
Using plea deals
Another way to judge whether prosecutors are properly screening cases is to look at plea bargains, Wright and Miller said. If a prosecutor’s office is doing a good job of screening cases at the start, then it should be able to get convictions without having to give away too much in plea negotiations, they said.
Some plea bargaining is inevitable, the experts said. Defendants don’t have much incentive to admit guilt otherwise, they said, and the system cannot afford to try all cases.
But not all plea deals are equal, Wright and Miller said. It is far better for a prosecutor to reduce a defendant’s sentence than to reduce the charge. In the latter case, defendants tend to get two breaks — one from a reduction in the sentence that the original charge carried and then again if they get a decrease from the maximum on the lower charge.
If a prosecutor’s office has implemented rigorous screening, then it should not have to bargain on the charge itself in most instances, Wright said. Exceptions should only be made when information not available during the screening process substantially changes the situation later.
In jurisdictions where prosecutors rigorously screen but then offer lenient plea deals in the fewer cases they take, “then you’ve got the worst of everything,” Wright said.
Data obtained by the Tribune-Herald do not allow for an examination of plea negotiations made by Segrest’s office or prosecutors in other counties. However, Segrest said he thinks his office uses plea bargaining appropriately.
Nearly all of the deals his office makes involve sentence negotiation, Segrest said. But bargaining down the charge is much less common, he said. The more serious the crime, the less charge-bargaining happens, he added.
Segrest said he tells his prosecutors to look at the entire set of circumstances surrounding a defendant when considering whether to negotiate. That means looking at the number of charges the defendant faces and the defendant’s criminal history, among other things, he said.
For example, if a defendant was facing a murder charge, a forgery case and two charges of marijuana possession, it would make sense to proceed only on the murder charge if it was a solid case, Segrest said. Dropping the rest makes sense for everybody, including taxpayers, he said.
“With one huge verdict in a murder case, you can obtain all the justice one guy can stand,” Segrest said.
Segrest said he knows that approach can rub people the wrong way. Victims of crime sometimes feel neglected if the case involving them is dismissed, for example. He recounted phone calls from people who were angry that his office dropped a case even though the person who stole from them or committed another property crime had received a lengthy prison sentence for a violent offense.
But part of his job is looking out for judicial economy, Segrest said. If prosecuting additional charges won’t benefit the community, he has to look at whether it makes more sense to discard them, he said.
Heavy case load
The district attorney’s office has a crushing case load, Segrest said, that has steadily increased since he became the county’s chief prosecutor 19 years ago. Last year it handled more than 3,600 felony cases and nearly 8,000 misdemeanors.
With 23 attorneys in the office besides himself, Segrest said, that case load means that each prosecutor is juggling between 300 and 500 cases at any given time. He noted that the county spends more on fees for court-appointed defense attorneys and experts than it does on his office.
Information from the county auditor’s office backs that up. For the 2008 fiscal year, $2.8 million was budgeted for the district attorney’s office, and $3.3 million was spent on indigent defense.
People vastly overestimate the percentage of alleged crimes that are prosecuted, all of the experts interviewed by the Tribune-Herald said. Several pointed to how shocked and outraged members of Congress were some years ago when a report found federal prosecutors declined to prosecute about 70 percent of cases.
Such statistics rarely enter the national conversation because getting data from prosecutors is tricky, the experts said. Many don’t keep comprehensive records or refuse to share the data they collect. But there are good reasons for the wide divide between the number of cases police recommend and the number that are prosecuted, they said.
Police are concerned with the immediate, said Tod Burke, a criminal justice professor at Radford University in Virginia and a former police officer. If they have reason to think public safety is being threatened — known as probable cause in legal jargon — they are supposed to act, he said.
Prosecutors, on the other hand, don’t get a case until after the action has died down, Burke noted. That gives them latitude to step back and consider the complex set of factors that govern whether prosecution is just. They also have to look at whether they can prove a case beyond a reasonable doubt at trial, a tougher standard than police’s probable cause, he said.
“It might be that police are doing their job but it’s just that different standards are necessary,” Burke said of cases that don’t make it through screening.
Keith Hampton, an Austin attorney who serves as vice president of the Texas Criminal Defense Lawyers Association, agreed. Take a case where someone appears to be driving drunk. A police officer should err on the side of public safety and take the person off the street, Hampton said.
“He doesn’t care what the background story is and he doesn’t need to care,” he said.
But then, the prosecutor and defense counsel fulfill their roles by doing an independent review of the case, Hampton said.
“That may tell you a wildly different story than what a cop thinks he saw,” he said. “. . .Criminal justice is not a widget factory. The issues are much more nuanced.”
The cost of justice
As part of the bigger picture, prosecutors also have to be concerned with resource expenditures, the experts said. Courts and prisons are already overcrowded and could not handle the load if all cases were prosecuted.
Because of that, prosecutors may rightly choose to abandon cases that could be proved in court, Baylor Law School professor Mark Osler said. The benefit just isn’t worth the cost. As an example, he pointed to the federal government’s decision not to pursue people for marijuana possession if they have state approval to use the drug for medical reasons.
Osler pointed out that not pursuing nominal cases frees up resources for prosecutors to go after more important matters.
“What would really be worrisome is if the cases prosecuted approached 100 percent or 0 percent,” Osler said. “But in the middle, there is an area of prosecutorial discretion where you make choices about what is worthwhile to take (to court) and what not to take, and that’s very difficult to assess from the outside.”
Segrest said all of those factors play a role in local cases that are not pursued. The primary reason cases are dropped is a defendant being prosecuted on another charge, he said.
As is true nationally, more than 90 percent of McLennan County cases are resolved through plea bargains. As incentive to get defendants to plead guilty, prosecutors routinely agree to drop one or more cases if the defendant will plead guilty to another charge, Segrest said.
“People don’t just forge one check,” he said, noting that inmates in the McLennan County Jail have an average of 3.34 cases against them.
Another leading reason cases aren’t pursued is evidence problems, Segrest said. That could range from a witness disappearing to the lab finding out a substance is not actually an illegal drug.
Other times, officials learn a suspect is innocent, Segrest said. Or the conduct for which someone was arrested is not actually a crime.
“You still have the old offense of P.O.P. — pissing off the police,” Segrest said.
Another factor that sometimes comes into play, he said, is that pursuing charges would cause more harm to the victim. With child victims, especially, it may not be in their best interest to have to endure a trial, he said.
“Some of these decisions are heart-wrenching,” Segrest said.
Segrest said he knows there is a feeling among some in the law enforcement community that his office is not aggressive enough. The buzz in some police circles is that prosecutors look for reasons to drop charges rather than press them.
Segrest vehemently disputed that, however.
“They compete for court space,” he said of cases. “But every one gets looked at . . . The impression by police is that nobody cares for their case, but we really do. This is what we’ve chosen to do for a living. We could make a lot more money representing the people they’re chasing.”
One of the toughest parts of a prosecutor’s job, Segrest said, is having to tell a police officer who is invested in a case that it won’t proceed.
“I’ve had to tell a lot of people I really like ‘no,’ ” he said. “. . . You don’t get any thanks, don’t get any appreciation if you don’t win or you don’t prosecute. Then you’re the biggest idiot in the world.”
Segrest added, however, that he is willing to listen to officers who disagree with case decisions. For years, he has encouraged those who have a beef to call him or the prosecutor who handled the case, he said.
“Quite honestly, nobody takes me up on it,” Segrest said. “It’s easier to say it’s the old, lazy prosecutor who won’t do his job.”
Both the Sheriff’s Law Enforcement Association of McLennan County and the Waco Police Association have endorsed Abel Reyna, a local defense attorney who hopes to win the Republican nomination to run against Segrest next year.
One reason the 115-member sheriff’s association decided to endorse Reyna, said president Mike Garrett, is because of the perception that Segrest’s office dismisses too many cases and often moves too slowly on those it does take. There are also concerns about the level of cooperation between Segrest’s office and local law enforcement agencies, he said.
Waco Police Association members simply took a vote on the endorsement and did not discuss the reasons behind their votes with each other, board chairman Mike Alston said. But in private, some Waco officers express the same concerns as the sheriff’s group.
Waco Police Chief Brent Stroman, however, said he thinks the department has a good working relationship with Segrest’s office. There are occasions where officers disagree with decisions made by prosecutors, he said, but that’s to be expected because of the different roles each play.
The officers who tend to get the most upset are the patrol officers, the chief said. Unlike detectives, they are not usually privy to what happens with a case after the initial call. So where a detective might be aware of a problem that necessitates a case being tossed, it comes as a surprise to the patrol officer.
“They’re just kind of more out of the loop,” Stroman said.
To help cut down on such frustration, Stroman said he has encouraged officers to take advantage of the prosecutors’ pledge to talk to them when they have concerns about case decisions. Beyond that, he tells officers all they can do is their best job. What ultimately happens to a case is out of their hands, he said.
Nonetheless, Stroman said, the department does make an effort to keep a line of communication open with Segrest’s office. If officers were regularly turning in cases that were faulty in some aspect, prosecutors would tell him. Similarly, he would not hesitate to talk to Segrest if the department had concerns about prosecution decisions, he said.
“There might be inherent conflict in the system, but it all boils down to communication,” Stroman said.
In Monday’s Tribune-Herald, find out what experts say voters should consider most when choosing a chief prosecutor.