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Friday, October 10, 2008
DA's Genuine Record: Tough Prosecution
By Kari Brandenburg
2nd Judicial District Attorney
A recent Journal article criticized the conviction rate for felony jury trials in the District Attorney's Office in the early months of 2008. The attack originated in the campaign of my political opponent in the heat of a contested race. I believe that some clarification and perspective is in order. The article was deceptive because it focused on only six months worth of cases — not the last eight years of my administration. Six months is not representative of the true picture of criminal jury trials in Bernalillo County. It may be politically expedient, but it is not fair to the hard work and dedication of the employees of the DA's Office. Our office handles between 30,000 and 40,000 cases each year. A more accurate picture emerges if one looks at more complete numbers obtained from District Court.
First, jury trials from July, August and September of 2008 were conveniently omitted from the total numbers reported to the Journal. During those months there were 23 jury trials. Those trials resulted in 13 convictions, five acquittals, two hung juries, two mistrials and one plea in the middle of trial. Had those numbers been included in the numbers reported by the Journal, the conviction rate for the year is 55 percent, as opposed to the 37 percent reported.
Data obtained from District Court reveals a very different picture of jury trial results over the last four years than the impression left by the Journal article. For cases resulting in a verdict, the conviction rate in 2005 was 67 percent, in 2006 it was 58 percent, in 2007 it was 73 percent and in 2008 to date it is 55 percent. The overall average conviction rate for jury trials over the last four years is therefore 65 percent. That means that two out of every three defendants taken to a trial in which the jury makes a decision, is convicted.
Cases that go trial are normally the most difficult. We refuse to agree to a resolution we feel is not in the best interest of public safety. There may be legal issues in contention as well as factual contradictions and minimal evidence.
Jurors are now much more demanding and expect the evidence to unfold as it does on TV. We call this the “CSI Effect”. They want DNA evidence along with other fool-proof testimony. Unfortunately, we have DNA evidence in only approximately 20 percent of our most serious cases. In the other 80 percent of the cases, we have to rely on oral testimony and ordinary forensic and circumstantial evidence.
All cases can present unique challenges, but acquittals are most common in gang prosecutions and crimes against children cases because of the nature of the evidence we often have to rely on.
Given these challenges, the defense decides to gamble on a trial. It is a gamble they lose two-thirds of the time. It is in the interest of public safety that these cases proceed to trial. Numerous child molesters, gang members, domestic violence abusers, burglars, and other criminals are off the streets or under supervision because we made the decision to fight for what we thought was right.
My opponent implies that our office clogs the system with cases that ought not to be brought. If we simply declined to pursue these difficult cases to jury trial, dangerous criminals would be loose on the streets without a fight. Our jury trial conviction rates would be higher, but we are more interested in doing what we think is right than playing a numbers game.
Professional prosecution associations warn that convictions are an inappropriate, if not unethical, measure of a District Attorney's Office. Jury trials comprise a very small part of the overall picture of the effort and commitment the DA's Office puts forth on a daily basis. However, if one chooses to use that measure, as my opponent did, our overall felony conviction rate exceeds 95 percent.
In regard to repeat offenders, there have been 13,260 repeat offender plea and disposition agreements entered over the last eight years. That means 13,260 defendants with at least one prior felony conviction admitted to a prior conviction and exposed themselves to greater periods of incarceration. There have also been 2,843 cases filed pursuant to the habitual offender statute. Though the law changed several years ago diminishing our ability to pursue habitual offenders, they do have our full attention. Further, we created the Special Proceedings Division to focus on individuals who violate their probation.
I appreciate we are in the political season and candidates are on the attack. It seems the truth has little to do with anything.
I am old fashioned, believing integrity and truth matter, regardless of the crazed political climate. The responsibility of the District Attorney's Office is too important to play games with the safety of our citizens.
(Editor's note: The 57 percent conviction rate for 2007 reported in the story was provided to the Journal by the DA's office and included all cases that went to trial. Brandenburg arrives at the 73 percent conviction rate by omitting cases that ended without a jury decision to convict or acquit — mistrials or hung juries. She argues that such cases often are retried.)
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