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Good Things Come to Those Who Wait (Updated)

A good result in a criminal case typically doesn't come quickly in Harris County. While there may be a number of con-artists and charlatans who promise that their connections or charm can result in an early dismissal, this almost always isn't the case. An acquittal, dismissal, reduction, or other good result often only occurs after months and months of pre-trial court appearances that appear to have no particular purpose other than wearing down defendants into pleading guilty. Whether or not that is true is open to speculation, but I suspect it's mostly a question of raw numbers rather than cold calculation.

In any given County Criminal Court at Law or Criminal District Court in Harris County, Texas, there are on average 500 cases pending on any given day. Each day of the week there are anywhere from 50 – 150 of these on the docket. At least 90% of those will be resolved by plea agreement prior to trial.

Only 1 – 5 % will actually have a jury trial. Jury trials are typically set by the individual courts for the beginning or the end of each week and multiple trials are set for each of those days in each court because on that day, some trial cases will plea, some will be dismissed, and some will have motions for continuances granted. In other words, the prosecution must prepare for a half a dozen trials or more not sure of which will actually proceed.

There are three prosecutors assigned to every court. A "chief," a "two," and a "three." They handle almost all of the cases pending in their court. The various "special divisions" (family criminal law, special crimes, etc.) of the Harris County District Attorney's Office may handle a significant caseload, but these are spread out over all of the county's thirty-seven criminal courts.

In each of those courts, with an average of 500 cases pending on any given day (cases opened and resolved every day) means that in a symmetric world each prosecutor in each court would be responsible for around 166 cases. But, the workload is not typically that evenly distributed. And so the lowest prosecutor in the totem poll is most likely to be the one responsible for screening most cases. That's a tremendous workload, even if it was distributed evenly. (And a reason why some local lawyers advocate for more trial court prosecutors).

Because there are so many cases pending in their court and almost all will plea in the first few settings, the prosecution does not have the time or the incentive to spend a great deal of time evaluating the strengths and weaknesses of a case until it looks like it might actually go to trial. They just can't. They are subject to the tyranny of the urgent and that tyrant is their trial docket.

What they do know, which is remarkable considering the numbers, comes from screening the reports, "RIP" (Restitution, Injuries, and Punishment") calls to alleged victims, and making sure that copies of all police reports, lab reports, 911 calls, and other evidence are gathered into their file). This is enough to appropriately resolve most cases. And prior to a trial setting, it's typically the most that can be done because there are hundreds of others that require the same work by that same prosecutor.

For most Defendants, however, their case is their only one and it is the most important thing in their life, and it should be. For the government, it's one of a million and there is no rush to resolve it unless by a guilty plea to a harsh punishment. This may appear Kafkaesque, but only if allowed to be.

The accused have the right to a jury trial; they have the right to plea not guilty; they have the right to remain silent. When they exercise those rights, the government notices. And then, finally, they become more than a number, but a person again – worthy of the time and attention every defendant's case deserves, but rarely gets from the State. And only then, most often in my experience, is when the best results are obtained.

Update: To be clear, I am not advocating setting cases for trial unnecessarily. When I set a case for trial, it is because I have every intention of going forward with it to a jury verdict (we don't see a lot of bench trials in Harris County). Unfortunately, my experience has been that the first time many prosecutors actually consider whether they should be going to trial is after it has already been set and they are getting ready - not because they procrastinate, but because they are understaffed.

Categories: Criminal Defense