Under the title of Scott Henson’s noted criminal justice blog, Grits for Breakfast, is a subheading that reads “Welcome to Texas Justice: You Might Beat the Rap, But You Won’t Beat the Ride.” For those of you who are either 1) outside the criminal justice world; or 2) too young to recognize the old phrase, you are probably missing out on how witty Grit’s use of the phrase is.
The original use of the phrase can be attributed to a police officer dealing with a suspect who is confident (rightfully or wrongfully) that the charges he is facing won’t hold up in court. The officer’s response is that although said suspect may ultimately win in court (“beat the rap”), he’s still arresting him and he’s getting a “ride” to jail. Scott’s blog serves as a respected watchdog for the Texas Criminal Justice System and his well-researched posts delve into the inequities in the System as they apply to prisons, prosecution, and police (amongst other topics). Scott’s blurb points out that even if nothing is ultimately done about the issues he highlights, at least they will experience the “ride” of being brought to public attention.
As someone who has occasionally clashed with Grits on some issues and found himself on the ride side of the blog, I can attest that the “ride” is not much fun.
Although the phrase “you may beat the rap, but you won’t beat the ride” might be considered innocuous enough, it actually highlights an ethical issue that prosecutors must deal with quite frequently in their careers — what do you do with the case where you don’t think you can prove it to a jury beyond a reasonable doubt?
From an ethical standpoint, the answer is clear. If a prosecutor knows that he or she can’t prove a case, then he or she has a duty to dismiss it. The burden of proof for a criminal charge is proof beyond a reasonable doubt and that standard applies from Capital Murder all the way down to a speeding ticket. If the burden can be met, so be it. But anything South of Reasonable Doubt is Not Guilty in the eyes of the law.
As I learned from the late great Professor Irene Rosenberg during my Criminal Procedure class at the University of Houston in the last Millenium, the Criminal Justice System is a series of moments involving the exercising of discretion — from the cop who decides whether or not to pull over a vehicle all the way to the juror who decides to convict or acquit.
No one in the entirety of the System, Professor Rosenberg noted, has more Power of Discretion than the Prosecutor.
The Prosecutor can decide whether or not to file charges. The Prosecutor can decide whether or not to dismiss charges. The Prosecutor can decide what plea bargain offer to make and no one can force them to change that offer. The Prosecutor can choose what evidence can ethically be put forward. The Prosecutor can decide what the definition of “ethically put forward” means. The power is not absolute. There are checks and balances to it, obviously.
But pound for pound, a prosecutor’s discretion is so powerful that incoming baby prosecutors in Harris County used to receive a book entitled “A Prosecutor’s Discretion” that we had to read as a job requirement.
The erroneous counter-argument to the principle that a prosecutor should dismiss any case he or she knows they can’t prove is a cynical view of the phrase “everyone deserves their day in court.” Under this argument, a prosecutor knows she can’t prove her case, but thinks that the Defendant should learn the valuable lesson of having the shit scared out of him by sitting through a trial anyway. That’s what courts are for, right?
If the proponent of a criminal case (the prosecutor for the State) doesn’t even believe there is enough evidence to proceed forward, then they shouldn’t be advocating otherwise to a jury — even (and this is key) even if they 100% believe that the Accused is factually guilty. A case without sufficient evidence shouldn’t be filed regardless of a police officer’s or prosecutor’s intuitive belief of a suspect’s guilt.
A case should also not be filed to play to public sentiment, and it damn sure shouldn’t be filed for political benefit.
This is a fact that seems to be lost on Harris County District Attorney Kim Ogg.