How difficult is it to file and prosecute a criminal case?
It could be perceived as ridiculously easy. Today, with all of the technology available to us, it could be seen as just pushing a button.
But, it’s a lot more than that, and the “backstory” is a lot more complex and time consuming than most people realize.
In a jurisdiction the size and population of Barton County, the county attorney must review thousands of reports submitted to her office during a calendar year. These reports come from the Great Bend, Hoisington, Ellinwood, and Claflin Police Departments, the Barton County Sheriff’s Office, the Kansas Highway Patrol, Kansas Bureau of Investigation, and the Kansas Department of Wildlife, Parks, and Tourism. It’s not unusual to see reports come in from other agencies like the State Fire Marshal, the Bureau of Alcohol, Firearms, Tobacco, and Explosives, Kansas Department of Revenue Alcohol Beverage Control, or law enforcement agencies from other Kansas counties — even out-of-state. These law enforcement agencies generate a police report when a person reports that a crime has been committed, when an officer sees criminal conduct by a suspect, or after an investigation into criminal conduct has been initiated and completed.
Once the reports are reviewed the county attorney makes a decision whether she believes there is evidence beyond a reasonable doubt to obtain a conviction in a case. There are many instances where reports are sent back to the submitting agency requesting addition investigation and/or information.
Kansas law requires that a statement of probable cause be submitted with a report — prosecutors call it an affidavit. If the law enforcement agency has not submitted an affidavit when charges are ready to be filed, one is requested from the particular agency. The charging documents are then completed and those documents, the complaint, and a warrant or summons are sent to a judge to review and to sign if he or she believes the affidavit contains probable cause to believe that the named person, the suspect, has committed the crime alleged in the charging document. This is a lower standard of proof than beyond a reasonable doubt.
The first time the suspect, now called the defendant, appears in court will be for a first appearance. At that hearing, the judge will advise the defendant of the charges against him or her and the possible penalties. If one or more crimes charged are felonies, a date is set for a preliminary hearing within 14 days. Representation by an attorney and bond issues may also be addressed.
At the time of the preliminary hearing, the State (prosecutor) will present evidence through the testimony of witnesses and physical evidence to establish that probable cause exists to believe that a crime has been committed, and that the defendant is the person who committed the crime or crimes. The judge will then make a ruling to either bind the defendant over for trial, if he or she finds probable cause, or to dismiss any felony charges in which he or she did not find probable cause.
The next stage in the criminal justice process is the arraignment. This is the time when a defendant will enter a formal plea. That plea may be not guilty, no contest, or guilty. If the defendant enters a not guilty plea, the case is then set for pretrial and trial either to the court or to a jury.
There are many legal issues that may need to be addressed prior to a trial. These can include matters such as motions to suppress evidence, motions to determine the voluntariness of statements, and a myriad of other issues. It is sometimes necessary for trials to be continued in order for motions to be heard and ruled upon prior to a trial actually taking place. One district judge is appointed to all criminal cases in Barton, Ellsworth, Russell, Rice, and Stafford counties. Additionally, the district judge’s calendar in this judicial district is historically very full with court trial and jury trial settings. That, coupled with a defense attorney’s and prosecution’s calendars, often complicates finding a trial setting that works for all parties.
With all of the above being said, the State does not have the luxury of choosing who reports a crime, who is a victim of a crime, and who is a suspect of a crime.
Ethically, I am prohibited from filing frivolous cases; if there is no evidence that a crime has been committed, no charges will be filed.
And, I will not file a case to “prove a point” or “teach someone a lesson.” I must absolutely believe that a crime has been committed and that I have the evidence to prove it. I won’t file a case because I want to or because someone else wants me to do so. There has to be a crime and the necessary evidence.
If, however, the possibility exists that a conflict of interest were to arise, it is my obligation to step aside.
If I’m presented with a situation where I believe I have a crime and the necessary evidence, I may not be able to file a case myself because the situation or the people involved would allow someone to call the County Attorney’s Office into question.
If someone could say, “You filed that charge to gain a political or personal advantage,” I can’t proceed and must ask a judge to appoint another prosecutor. I have to be aware that this kind of situation – however rare – could arise.
The duties are challenging and the days sometimes long. But, I still think being a prosecutor is a calling I want to answer. I don’t know that I would call it a “fun” job, but it is rewarding knowing that I’ve helped right some wrongs.
Amy J. Mellor is the Barton County Attorney.