The New Trace Case Policy

The Harris County District Attorney's Office under Kim Ogg has finally rolled out the "No Trace Case" policy that many of us have been expecting since she took office on January 1st of this year.

The policy dictates that the Office will no longer file State Jail Felony Possession of a Controlled Substance charges on cases where only residue or "trace" amounts of the drug are recovered when a person is arrested.  These types of cases are most commonly filed when a person is arrested still carrying a crack pipe, but the crack has long since been smoked.  Under the law, felony charges may be brought if there is a detectable (as opposed to usable) amount of drugs such as heroin, cocaine, or meth recovered.  As a matter of contrast, for a person to be charged with the misdemeanor charge of Possession of Marijuana, there must be a usable amount recovered.  There is no such requirement for the "harder" drugs that fall in the felony level, and it is not unusual to see charges found on drug cases where the amount in question is .001 grams.

The decision of whether or not to file Trace Cases is a controversial one.

The arguments in favor of filing them typically come from police officers who rightfully point out that residue cases are evidence of larger amounts of the drugs that have already been consumed.  The police further believe that the cases help keep those troublesome junkies off the streets, which will trickle down into a reduction in burglaries, rapes, and other violent crimes.  They also point out that drug addicts use the drugs almost immediately upon acquiring them, making it virtually impossible to catch them with their usable amounts.

I've gone on record before as being against the filing of Trace Cases.  (From the Intellectual Honesty Department, I supported my arch-nemesis Pat Lykos' policy when she stopped filing them in December of 2009.)  It isn't that I'm in favor of smoking crack.  I've never tried it myself.  For me, it is an issue of manpower and resources.  I remember that shortly before the Lykos policy, I was driving on Beltway 8 with my oldest son when a car sideswiped the rear panel of my 4-Runner and kept on trucking.  I got a license plate number and called the police.  It was the middle of the afternoon on a weekday, but no officer was called out or responded.  About six hours later, the police called back to ask if I was still at the scene.

But, the crack pipe cases were still being filed wild fire.  I just believe it is a better use of resources to focus on other crimes than these.  I know a lot of people in law enforcement read this blog and are going to disagree with me on this.  I'm bracing myself for the backlash.

On a lighter note, I do think that it is rather amusing that the notice of the new policy did not come in the form of a press release or email to All Prosecutors.  Apparently the Ogg Administration was doing a "soft roll out" by just leaving notes for the prosecutors working intake.

"Due to budget cuts, we are using new methods 

of sharing officewide memos."

Expect there to be a lot of complaining from the police unions and Ogg opponents who will make the argument that Ogg is "legalizing drugs."  Don't buy into that argument.  Police officers have the absolute right to arrest someone for possessing a crack pipe (or other residue holding item) and file a Class C Misdemeanor of Possession of Drug Paraphernalia case.  

It's still a crime, just not a felony.  

Intake

One of the lesser known aspects of how the Harris County District Attorney's Office works is what goes on behind the scenes at Intake.

Located on the second floor of the CJC, the Intake Division is the place where criminal cases are first filed.

It is staffed by at least three prosecutors 24 hours a day, 7 days a week, 365 days a year. Prosecutors get paid extra money outside of the standard 8 to 5 business day. It's the only possible way that prosecutors can make extra money to supplement their salaries, and the vast majority of them participate in it.

This is how it works:

When a police officer seeks to arrest a suspect on any criminal case (other than a Class C misdemeanor), they must get the charges approved by a prosecutor. A typical example of what the call from a police officer on a case (let's say a DWI for this scenario) goes something like this:

"This is Officer Smith with HPD. Stopped a guy for speeding, failure to maintain a single lane of traffic, and running a stop sign. Smelled a strong odor of alcohol on his breath, so I asked him to perform field sobriety tests. Got all 6 clues on the HGN. 3 clues on the walk and turn. Stumbled during the walk and turn, and swayed during Rhomberg. Took him into custody and down to the station, where he blew a .14."

The prosecutor then will accept or deny charges. Obviously in the above scenario, he or she would accept. The officer will then officially file the DWI charges.

About thirty minutes to an hour later, the Officer will have typed up a brief summary of the case, and entered in the Defendant's identifiers and criminal history. The prosecutor will get the written package on his desk and then "screen" it. They will make a request for a bond that will reflect the level of the offense, combined with the Defendant's criminal history. They give their screened case to the intake secretaries, who will put the case in final form with all the legal paperwork.

Where it gets funny is when a prosecutor doesn't want to take a charge (which believe it or not, happens quite often!). Cops and prosecutors will sometimes end up screaming at each over the phone over whether or not charges should be accepted. Some officers who have charges rejected will have their supervisors call in to argue as well. Nothing will get a prosecutor more fired up than when things happen like that.

In addition to the accepting and screening of charges, the prosecutors on duty at intake are also responsible for doing Grand Jury subpoenas, as well as writing search warrants and arrest (AKA "To Be") warrants for Defendants not in custody. The "To Be's" are usually not that tricky, but search warrants can often times take hours to write.

On some nights, the pace of intake can be relatively slow. But picture the scene on a Friday or Saturday night around, say, 2 a.m. Every last single charge that will be filed has to get the final blessing of a prosecutor. Every line on the phones are blinking. A prosecutor finishes a call and hangs up, and the line immediately starts blinking again.

At times, prosecutors are praying that it will just settle down to "Chaotic" level.

But ultimately, it's a system that speeds up and streamlines the Defendant receiving his or her Due Process rights in a timely manner.

So, if you weren't familiar with it, that's the intake system in a nutshell.

Now, that being said, I now invite all former and current prosecutors to share their favorite intake war stories.

(NOTE: It's also worth noting that the Special Crimes Division also operates as a de facto intake with the more complicated and serious cases. The prosecutors in that Division (headed by Kelly Siegler) are on call 24/7 by cell phone. They get the phone calls in the middle of the night and write warrants too. Just without the overtime pay.)