THE DISTRICT ATTORNEY SHOULD NOT ACCEPT CHARGES FROM THE POLICE IF THERE IS A QUESTION OF PROBABLE CAUSE

DA Ogg: Judges’, magistrates’ discretion spurs increase in ‘no probable cause’ findings

By Samantha Ketterer

Houston Chronicle
November 14, 2019

Harris County District Attorney Kim Ogg took aim at local courts this week, calling an alarming uptick in findings of no probable cause in more than 3,000 court cases a waste of resources and a public safety concern.

Local judges and magistrates ruled no probable cause in 3,217 misdemeanor and felony cases this year — a more than 70 percent increase from 2015 — citing a lack of sufficient evidence to continue with a criminal charge, according to the DA’s office.

“This is not a situation of our making,” Ogg wrote in the letter to area police chiefs. “Every one of these decisions is being made by our local magistrates and judiciary and should be of critical concern in terms of just how far our limited resources can be stretched as we strive together to keep Harris County safe.”

Ogg said that the no probable cause findings cause the defendant’s case to be dismissed — a claim disputed by Judge Darrell Jordan, presiding judge over the 16 Harris County criminal courts at law. Only the DA’s office makes the decision to pursue or dismiss a case after a finding of no probable cause, not any judge, he said.

Highest findings of no probable cause

In 2019, magistrates and judges have tossed 3,217 cases due to findings of ‘no probable cause.’ Here are the top five area agencies that saw cases dismissed for that reason.

Houston Police Department: 1,656
Harris County Sheriff’s Office: 474
Harris County Constable’s Office Precinct 4: 161
Baytown Police Department: 107
Pasadena Police Department: 87

(Data obtained from the Harris County District Attorney’s Office)
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Jordan added that he requested to meet with the district attorney in late June but is still waiting a response.

“This is one of many examples where Ogg tells half the story in order to paint herself in a positive light,” Jordan said. “Integrity matters, especially when we are dealing with community safety. If this was a true concern, why wouldn’t she come talk to the judges?”

District attorney spokesman Dane Schiller said that a finding of no probable cause places a case in “legal limbo,” meaning prosecutors can’t move forward if police are unable to present additional evidence. It’s unclear how many of the 3,217 cases have been dismissed or re-presented to judges or magistrates.

“Judge Jordan is flailing as he has personally tossed out hundreds of cases that cost taxpayers thousands of dollars and released criminal offenders right back into the streets,” Schiller said.

“The judges are well aware of their own rulings,” he added.

Judge Herb Ritchie, who is the administrative judge for Harris County’s 22 district courts, was unavailable for comment Thursday. Judge Kelli Johnson, acting in Ritchie’s place, said judicial rules prevent her from speaking about cases brought before the court.

The Houston Chronicle obtained Ogg’s letter after she sent the note Wednesday to more than 50 law enforcement leaders ahead of a Thursday meeting of the Houston Area Police Chiefs Association.

Police officers take the first step when they make arrests and bring evidence of a crime to the District Attorney’s Office, which then presents evidence to a judge or magistrate. The judiciary then determines whether there is probable cause to continue with a formal criminal charge.

Judges are bound by rules of the law and don’t technically have discretion over probable cause, said Kenneth Williams, South Texas College of Law professor. Evidence for probable cause must be “sufficient,” but a judge’s interpretation of the evidence might vary, leading to a difference of opinion, he said.

“It’s ultimately the judge’s call, not the DA’s call,” Williams said. “That’s why we have judges.”

The judges and magistrates have reported that they denied probable cause in many cases because police submitted statements without enough detail to warrant a charge, Ogg said in her letter. And in other cases, the increase has occurred because of judges’ vocal and personal perspectives about crimes and the offenders, the district attorney alleged.

Some of those findings are made in initial probable cause court hearings, and others are made as late as the time of a plea, she said.

So far this year, the magistrates and judges found no probable cause in 2,232 misdemeanor and 985 felony cases, Ogg said. The count was lower in 2015, when the judiciaries found no probable cause in 1,094 misdemeanor and 785 felony filings, according to data collected by the district attorney’s office.

And police agencies are filing fewer cases over that time period — more than 102,243 filings in 2015 compared with a projected 93,199 filings this year, the data show.

Some of the more frequent charges that are denied include assault, driving while intoxicated, evading arrest, felon in possession of a weapon, criminal mischief, unauthorized use of a motor vehicle and unlawfully carrying a handgun in a motor vehicle, district attorney spokesman Michael Kolenc said.

Ogg said agencies should work with the district attorney’s office to determine whether it is worth the expense and effort to refile cases once probable cause is denied. She warned that all evidence must be trial-ready because the court might require an expedited trial schedule.

The largest agencies account for the most arrests where probable cause was denied — Houston Police Department, Harris County Sheriff’s Office, Harris County Constable’s Office Precinct 4, Baytown Police Department and Pasadena Police Department, according to the local prosecutor’s office.

Houston Police Chief Art Acevedo called the increase in no probable cause findings disheartening, saying he is confident in the validity of the charges his officers pursue. He said his department plans to form a team to look at cases that were denied probable cause and determine whether to re-file charges.

But after observing the Harris County judiciary for his three years as chief, Acevedo said the apparent rise is ultimately unsurprising. More than 1,560 of his department’s cases have been found without probable cause this year, according to the DA’s office’s data.

“What I’ve been seeing here is a criminal justice system that is focused on everything but keeping people safe,” the chief said. “I think the public needs to know the good, the bad and the ugly.”

Baytown Police Chief Keith Dougherty said he is concerned when his officers have cases dismissed due to a lack of probable cause, according to an agency spokesman. The department presented 107 cases this year that were eventually thrown out for that reason, according to the district attorney’s office.

“Our officers affect thousands of arrests annually and we have an obligation to everyone involved to investigate each of those cases thoroughly and gather all the facts,” Baytown police spokesman Lt. Steve Dorris said. “We at the Baytown Police Department are absolute in our commitment, when we arrest and/or charge a suspect in a case that we have more than ample probable cause, not just enough to support a criminal charge, but ideally enough to convince a judge or jury to render a guilty verdict, should the case go to trial.”

Pasadena Police Chief Josh Bruegger said he isn’t inclined to question the denials but hopes judges will provide more feedback to officers so they can bolster future cases and lead to fewer dismissals.

“At the end of the day, as long as everybody’s following the law, I’m not going to second-guess the judge’s decisions,” Bruegger said. “There’s something we need to change as far as the process or procedure.”

The Harris County Sheriff’s Office — which had 474 cases denied this year due to no probable cause — will continue to seek charges based on good evidence, Sheriff Ed Gonzalez said.

“Law enforcement officers, prosecutors, and judges all play important roles in ensuring the public safety,” he said. “We will continue working collaboratively to ensure that people who commit crimes in our community are held accountable, and that the charges we file are based on compelling evidence.”

EDITOR’S NOTE: I suspect that where the police are at fault, it is due to the inability of officers to write what they are charging with clarity and legibility.