THE BEGINNING OF A PROSECUTION BY THE DA’S OFFICE

The DA must feel satisfied that there is enough evidence to go forward to trial. At weekly Case Management Conferences, the DA determines what specific formal charges should be brought against the accused in going to trial. These may be different from the charges when the suspect was originally booked at the Probable Cause Hearing.

The DA moves ahead with prosecution by either:

1. Presenting the charges to a Grand Jury for it to determine whether to issue a Bill of Indictment;

- Or -

2. Presenting a Bill of Information to the court, written and filed by an ADA.

1) GRAND JURY AND BILL OF INDICTMENT

The Grand Jury’s role is to decide if a person should stand trial to determine innocence or guilt. They will only hear the government’s side of the case (from the DA), and will not give a verdict.

• A Grand Jury is made up of 12 individuals, selected from the public every six months. They meet in weekly proceedings that are closed to the public, and cannot discuss their cases publicly.

In Louisiana, any felony offense that carries the possibility of a life sentence or the death penalty (“capital case”) must be presented to the Grand Jury. These will involve all homicide and aggravated rape cases.

The DA’s office presents evidence to the Grand Jury and asks for specific charges. Police officers and witnesses may be asked to testify under oath at these closed hearings.

The Grand Jury listens, asks questions, and makes one of three decisions:

1. They indict (or formally charge) a suspect with a Bill of Indictment (also called a “true bill”), meaning they find sufficient evidence that the person committed the crime and should be taken to trial. They document the charges for which the suspect must stand trial; these charges may be different from what the DA recommended.

2. There is a “pretermit,” (or abandon for a time) which means the Grand Jury does not have sufficient information to make a decision about what to do in the case. The same case can then be presented to them again later with new evidence.

3. They deliver a “no true bill,” which means there is insufficient cause to charge the defendant. It is then up to the DA to decide if there is further investigation that can be done on the case, and if it could be presented again to the Grand Jury.

-OR-

2) BILL OF INFORMATION BY DA

This is written and filed by the DA’s office on every case – including all violent offense cases – that they decide to prosecute (except for those that are sent to the Grand Jury). It sets forth the formal charge(s) for which a suspect will be prosecuted.

• These often involve cases such as: attempted murder, aggravated assault, forgery, possession and distribution of drugs, and felons in possession of a firearm.

CRIMINAL COURT CLERK AND JUDGE ASSIGNED

The DA takes either the Bill of Information (written by the DA) or the Bill of Indictment (from the Grand Jury) – and files it with the Clerk of Criminal Court.

• The Clerk of Court keeps track of court documents and filings, and prints a list of what cases are to be heard by each judge daily. They also keep track of bond amounts posted for each defendant.

All cases are randomly allotted to a particular section of court, depending on when the Bill is filed.

• There are 12 sections in Orleans Parish: A–L, each with its own judge. Each court has a specific trial ADA assigned.

ARRAIGNMENT

If the suspect is in jail, then approximately 48 hours after the Bill of Information or Bill of Indictment is filed, the suspect appears in court for arraignment, where the specific charges against him/ her are formally read.

• If the suspect is out on bond, it may take about two weeks or longer because a subpoena must first be sent to the suspect informing him/her of the arraignment. If a suspect is “at large,” a judge will place a warrant for the suspect’s arrest, who will then be arraigned when arrested.

Once formally charged, the suspect is now called a defendant and must enter a plea of "guilty" or "not guilty" for each charge – or enter a "not guilty by reason of insanity" plea.

• Expect a not guilty plea to be entered. Keep in mind this is just the beginning of the case in court and both sides are not yet adequately informed – typically, there has been no discovery and both sides will be waiting on investigative reports in order to make later arguments.

• If the defendant does not have funds, a Public Defender will be assigned and paid for by the State. The Public Defender is often only meeting the defendant for the first time at arraignment, and will require time to understand the strength or weakness of the case. Don’t expect the same level of representation that a private defense lawyer would provide - the Public Defender is overworked and underpaid.

A review of the defendant’s bail may be requested at this time, as well as in the future, should new mitigating facts come to light that help the defendant’s case.

PRELIMINARY HEARING (only for Bill of Information cases)

If a Bill of Information has charged a suspect with a crime, s/he will be brought before a judge for a Preliminary Hearing (or “prelim”).

• (Note that if a Grand Jury issued a Bill of Indictment, the defendant will not be given a Preliminary Hearing.)

This hearing provides a snapshot of the criminal case to the assigned trial judge. The ADA will introduce just enough evidence to show the defendant committed a crime. This is not as thorough as the evidence that will be later presented at trial. For example, police officers can present hearsay (what they learned from witnesses or others); hearsay is not allowed at trial.

Witnesses may testify before the judge, providing a description of what happened. The defense attorney will likely cross-examine the witness to better understand the witness’s observations and demeanor (how they present themselves) on the stand.

• A Preliminary Hearing is also a way to preserve testimony, such as if a witness is ill and unable to testify later at trial.

• Again, keep in mind the defense attorneys are just doing their job – and their job is necessary to make sure that innocent families are not hurt – and so their cross-examination is not meant to be a personal attack, even if it feels that way.

The judge’s job is to determine if there is probable cause for the defendant to be held in jail, released on bail, or be released until the trial of his/her case. The information presented may also influence whether the bail will be increased, reduced, or denied. homicides cases, bail is not allowed.)

DISCOVERY

Discovery refers to the investigative process during which the prosecution and defense look for information and evidence to support their case. Discovery includes the process of obtaining documents, confessions, witness statements, police reports, searches, and scientific research. Both sides must be given a chance to review and respond to the evidence of the other side.

The DA must give the defense its entire discovery; however, the defense only has to give the DA the discovery of evidence it plans to use at trial. It is mandatory (required) that the prosecution (DA’s office) provides the defense with exculpatory evidence (also called Brady material), which means evidence that is helpful to the defense. If evidence was withheld, a case can be retried or dismissed.

Both sides must disclose who their expert witnesses (professionals in a particular field) will be, and if they will ask any expert witness to provide opinions on the evidence.

Admissible evidence must be:

• Reliable or trustworthy. For example: was the witness able to see the crime if they have eyesight problems – or if it was dark

– or if an object blocked their view?

• Material or significant facts. The color or type of shoes the defendant was wearing at the time of the crime may be material, but his/her favorite color generally may not be material.

• Relevant facts that help jurors make decisions about the case. Not all past criminal acts are considered relevant as to whether the defendant committed the crime being tried. For example, a defendant’s previous conviction for a gun charge is not the same as him having a current charge for rape. However, some past criminal acts can be introduced, if they show a pattern of criminal behavior.

The goal of discovery in an investigation is to uncover as much evidence as possible to prove that the defendant committed the crime. Thus the process involved in the investigation phase favors the prosecution (your case).

After an arrest, the court system assumes the person is innocent until proven guilty. In order to provide this protection, some procedural rights (court rules) favor the defendant. This may seem unfair, but it is critical to avoid false convictions.

PRETRIAL HEARINGS – MOTIONS – RULINGS

The judge has to decide what evidence and testimony gathered during discovery can or cannot be presented at the trial (such as confessions, searches, and identifications), and will base this on: previous cases, rules of evidence, and legal procedures.

These issues are presented to the judge by lawyers for both sides through legal proceedings called motions (e.g. Motion to Suppress Evidence, or Motion to Suppress Confession of Co-Defendant).

• One side will argue for a particular way to interpret the facts that favor their case. The other side may file a rebuttal, or counter- argument, to show why that interpretation is wrong.

The judge will make important court rulings, or decisions, on each motion – and these motions may be made during trial as well.

It may surprise you that a large part of the information gathered in the investigation might not make it to trial - some of it may be suppressed (not allowed) during the motion hearings.

• Note that a defendant’s criminal history showing a similar pattern of behavior or habit, and details of prior convictions (such as tactics used in similar crimes for which the defendant was convicted) are generally excluded from trial by law as too prejudicial - unless the defendant testifies and confirms it. The law requires defendants to be convicted based on the facts at issue, not facts associated with prior incidents.

Given how much of the trial is influenced by these motion hearings, attending certain ones will give you a better appreciation of what is going to be presented and argued during the trial. Ask your ADA for help in deciding which hearings to attend, as there can be many, often held on different dates. Some can last minutes, and others last days. Some can involve very technical legal issues.

Pretrial hearings will help to assess the strengths and weaknesses of your case. If it is not looking like a conviction will be obtained, you and your ADA might consider a plea bargain.

SIDEBARS = BENCH CONFERENCE

If the lawyers for both sides want to discuss some procedural matters privately with the judge, they will hold a sidebar or bench conference in front of the judge’s desk. This is supposed to be for confidential information that must be shared, but which cannot be discussed publicly. The judge may instruct the lawyers to meet in his/her office, which is called a “meeting in chambers.”

• This can be a frustrating experience for survivors, especially if the reason for the sidebar remains unexplained, which frequently happens. [See Court Watch NOLA's online reports]

CONTINUANCES

This means a delay (or postponement or adjournment) of any court action to a later date, as requested in a motion by either side. This can be granted or denied by the judge.

There are frequent delays in court and trial dates. Certain motions may take a significant amount of time, or there can be changes in ADA’s, defense attorneys and other personnel. Defense lawyers may stall the case as much as possible— delays work in their favor when people forget information, or witnesses may die, or move, or become unwilling to help as time passes.

Expect delays, for they are an unfortunate yet common part of the process. Your ADA or Victim Witness Coordinator will advise you of any changes as soon as they know of them. Also check on Docket Master for updates. Continuances are infuriating, especially when you’ve geared yourself up for going to court, and when you’ve had to make special arrangements, such as work leave, transportation or childcare, to be there.

As Court Watch NOLA noted in their 2016 Annual Report: “It should also be mentioned that with joint continuances [between ADA and defense attorneys], judges do not have the legal discretion to forbid the continuance. Although the judge may want the case to move more efficiently, the judge is barred from doing so if a joint continuance is requested. Out of all the parties responsible for continuances in 2016, the defense is by far the largest contributor to continuances.”

PLEA BARGAIN

A defendant may plead guilty as charged at any time – even during trial – and this will stop the case from proceeding.

• More often, what happens is that a defendant will plead guilty to a lesser charge in exchange for the case not going to trial, and/or in order to get a lighter sentence; this is a plea bargain. Usually what is being negotiated is the amount of jail time the defendant must serve.

If the judge accepts the plea bargain, the result is a conviction (meaning a guilty plea). By pleading guilty to a lesser charge, the defendant waives (or gives up) certain rights, like the right to another trial. However, a defendant is still allowed to appeal his/her conviction to a higher court if s/he received ineffective assistance from their lawyer.

If the defendant has a prior history of violence, this will lessen the likelihood that the DA will agree to a plea bargain.

Sometimes the DA may make a plea bargain with a defendant so they can get testimony against another defendant who was more at fault in the crime. The DA will therefore offer plea deals to a defendant in return for testimony about another crime. Also, sometimes allowing a defendant to be punished for a lesser charge is better than going to trial and losing everything.

Your ADA should discuss the terms of the plea bargain with you; make sure you ask them to do so. The ADA will generally involve the family and carefully consider their views in reaching a decision to offer a plea. However, it is up to the ADA to accept the terms of the plea in the interests of society, as opposed to your interests.

CASE DISMISSAL – OR DROPPING CERTAIN CHARGES

After a case is filed in court, the DA may decide to stop prosecuting a case – or otherwise dismiss, or amend (change), specific charges within it – without making a decision as to the guilt or innocence of the defendant.

• Charges cannot be dropped at the request of the victim.

Reasons why the DA might dismiss a case or drop charges include:

• There is insufficient evidence, or it turns out the evidence is not as strong as thought initially, for the charges to hold up

• Witnesses aren’t available, don’t show up, are uncooperative, or are deceased

• New evidence comes to light that contradicts or undercuts the basis of the case

• Important evidence is deemed inadmissible - for example, if it becomes known that it was obtained without a proper warrant, or wasn’t described in the arrest warrant

• A defendant’s rights were violated - such as through an illegal stop, or failure to read Miranda rights

• A defendant is willing to provide testimony on a bigger case

A judge has the right to grant a pre-trial motion to quash a Bill of Information or Bill of Indictment. This will halt the prosecution, but the DA has the right to appeal the judge’s decision. Reasons for granting a motion to quash may include: prescription (time to prosecute has run out), or the charge was filed in the wrong venue/jurisdiction.