"Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is the police and prosecutors," said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.Apparently, Jenkins is so concerned that if Kim Ogg were to get a whole bunch of new prosecutors, the D.A.'s Office would just go out and start prosecuting things unnecessarily so that those new prosecutors won't get too bored. That's a silly notion if you've paid attention to anything that Kim Ogg has done since taking office at the beginning of 2017, and it clearly illustrates that Jenkins hasn't spent much time in the trenches of Harris County criminal justice.
Ogg countered Jenkins' criticism with an editorial in this morning's Chronicle. In typical Ogg fashion, she demonstrated her flair for the dramatic:
It's the kind of fear that awakens prosecutors in the middle of the night.
What if I help convict the wrong person? What if I fail to bring a serial murderer to justice and he kills again? What is the best outcome for a family plagued by domestic violence? How do we prevent a drunk driver from leaving jail, getting in his car again and killing an entire family?
Prosecutors wrestle with these worries every day.Um, calm down, Kim. Most prosecutors at your office waking up in the middle of the night are mostly worried about what Joanne Musick is retroactively doing with their evaluations.
That being said, Kim is right on this issue. The District Attorney's Office does need more prosecutors, and contrary to Jay Jenkins' opinion, that doesn't compromise the Ogg Administration's progressive views towards the Criminal Justice System. Harris County Assistant District Attorneys are overworked and underpaid. Seriously. To the point where it is kind of absurd.
Even with Possession of Marijuana cases and trace cases not being filed, there is no shortage of crime in Harris County, Texas. Overall filings may be way down, but prosecutors still find themselves handling hundreds of cases. Sure, those cases vary in degrees of seriousness, but each and every one of them still have things that must be done on them.
If Jenkins spent a little more time in the trenches, perhaps he would become more familiar with the extremely common occurrence of a case being reset because an overworked prosecutor didn't get a "To Do" done. Those resets are (on average) about a month, and in many instances, that's a month of sitting in jail.
That can be an extra month in jail because:
1. A prosecutor didn't get a final restitution figure on a theft case.
2. A prosecutor didn't get in touch with the victim of an assault who wanted to drop charges or was okay with probation.
3. A prosecutor didn't get a copy of the search warrant or the offense report.
4. A prosecutor didn't have time to look at a search issue.
5. A prosecutor didn't have time to talk to an alibi witness offered by the defense.
6. A prosecutor didn't have time to review a DWI video.
The reason these types of To Do's don't get done is NOT because prosecutors are lazy. Most prosecutors (especially Twos and Threes) are working ten or twelve hour days and on weekends. The reality is that they are overwhelmed with cases.
If a prosecutor is in a court that goes to trial frequently, that makes matters even worse. You know how whenever you go on vacation, all the things that you are supposed to be working on have a tendency to pile up on your desk? Well, that same phenomenon occurs every time a prosecutor is in trial.
In many instances, a prosecutor won't take a hard look at a case unless it is actually set for trial. If you're sitting in jail because you can't make bond, that's going to be a really long wait.
I think that the 2011 William & Mary law review article (written by HCDA Alum Laura Killinger and her husband, Adam Gershowitz) cited in the Chronicle article frames the overall issue best. They noted both pros and cons to the idea of adding more prosecutors.
. . . adding prosecutors could "result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors."
. . . a better-resourced district attorney's office can allow prosecutors to identify and dismiss weak cases more quickly.The interesting thing to note about Laura and Adam's article is that it was written in 2011, which was before the "progressive" movement that is currently sweeping major metropolitan areas in the country. A more hard-core, conservative elected District Attorney might use more prosecutors to file more cases, but that's not Kim Ogg.
And, quite frankly, I don't think that expansive prosecution of low-level cases is the future of prosecution. At least, not in the big cities.
Ogg's appeal for more prosecutors is a well-intentioned and necessary request that will help the progressive agenda, not hurt it. Jenkins should have a little more faith in Ogg. They both have the same hopes for the future of Criminal Justice.
If he spent a little more time in the trenches, he might realize that.