Truden’s facts not complete
August 23, 2005
I wanted to respond to Colleen Truden’s comments in the Glenwood Springs Post Independent, The Aspen Times and the Aspen Daily News on Aug. 23. Ms. Truden cites an 8 percent increase in felony convictions and up to a 58 percent increase in felony filings since she took office last January as evidence of the quality of her work. It is important to put those numbers in perspective if they are to mean anything.There are two key factors that can raise the number of felony cases filed. First is the number of felony offenders being arrested. This is not something that can be controlled by the district attorney. That is a function of the amount of crime in the community and the ability of law enforcement to catch the offender. The second factor is the standard the district attorney uses in making a felony-charging decision.Concerning charging standards, the question to be answered is what amount of evidence does Ms. Truden require of a law enforcement investigation to file a felony case? My office used the filing standard adopted by the American Bar Association and the National District Attorneys Association. Felony charges were filed if there was sufficient admissible evidence that there was a reasonable probability of conviction at trial. While some of the increase in felony filings seems to be from demographics and the resulting increase in calls for service for law enforcement, most of the increase in filings likely reflects a change in charging standards. If Ms. Truden uses a lower standard than my charging deputies used, she would file felonies where my office might have filed misdemeanors or, in some cases, declined to file anything, thus her felony filings would be higher. If her charging standards are lower and the defense bar is doing its job, one would expect to see fewer felony convictions per number of filed felonies. That seems to be the situation in the 9th Judicial District. The vast majority of criminal cases are plea bargained. This is not because prosecutors are easy on crime. It is because the criminal justice system is not set up to try very many cases. Let’s say 600 felony cases are filed in a year. The law requires that cases be resolved within six months of a not-guilty plea unless the defendant waives his right to speedy trial. The average felony case takes three or four days to try. If every case went to trial, that would require about 2,100 days of court time. There are simply not enough courts and prosecutors to try a lot of cases. Not many people like plea bargaining, but it is a fact of life in our criminal justice system. If one factors in the time it takes for a felony case that is plea bargained to work through the court system, one would expect at least a 25 to 30 percent increase in felony convictions given the higher number of felony filings. Ms. Truden’s own numbers suggest that a lower percentage of the felony cases she is filing are resulting in felony convictions. That is nothing to boast about. This may reflect on the quality of felony cases she is filing (not provable at trial), plea bargains that reduce felonies to misdemeanors, or many cases being set for trial. As a general rule, cases are set for trial when the defense thinks it can beat the plea bargain offered, which generally reflects the defense lawyer’s estimation of the strength of the case.Ms. Truden said county court misdemeanor filings are also up. Most county court misdemeanor cases are filed directly into court by police officers who write tickets. The DA’s office has no input into those filing decisions. If there are more county court misdemeanor filings and law enforcement authorities say there are more calls for service, this simply reflects an increase in law enforcement activity and has nothing to do with the performance of the district attorney’s office. There is almost always a correlation between the number of misdemeanor filings and the number of felony filings. When county court misdemeanors are up, one expects to see more felonies. Disposition of the county court misdemeanor cases would be the measure of performance in the county court.Of all the statistics Ms. Truden tossed about, she did not discuss the percent of filed felonies that resulted in felony convictions or the percent of filed misdemeanors that resulted in misdemeanor convictions. To make statistics meaningful, one must compare apples to apples and not apples to oranges.Mac Myers was district attorney of the 9th Judicial District before Colleen Truden. He is now deputy district attorney of the 22nd Judicial District.
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