Wednesday, September 10, 2008

Edwards Will Not Be Charged

The Enquirer reports that Hamilton County Prosecuting Attorney Joe Deters announced tonight that he will not seek an indictment against Jodie Edwards, whose infant daughter died when left in an SUV for several hours.  The flood of comments attached to the Enquirer's story serves both as a compelling argument for why newspapers should be newspapers rather than blogs (and not permit comments on news stories) and a reflection of lots of confusion over why this case turned out as it did.

First, let me express some sympathy for Joe Deters (who, I'm quite sure, doesn't need me to defend him).  Nine times out of ten, I'd tell you that a defense attorney's job is much harder than a prosecutor's.  After all, a prosecutor has, theoretically, the resources of the entire State of Ohio at his disposal.  When cases go to trial, his principal witnesses are often uniformed police officers, which translates to instant credibility with a jury.  I spend most of my voir dire just persuading potential jurors that the mere fact that my client's been charged with a crime and sitting behind a placard that says "Defendant" doesn't mean he did anything wrong.

But the Edwards case represents the rare instance when you couldn't pay me enough to be a prosecutor.  My decision on whether to represent a client in a criminal case is easy:  either a judge appoints me or a client shows up in my office wishing to retain me.  But deciding whether to charge a person with a crime, particularly in this instance, is much more complex.  How does one weigh the shock and outrage over what happened to a defenseless child with compassion for a grieving mother, all while trying to fairly apply the applicable law to the provable facts?  I doubt Deters made this decision alone.  He no doubt consulted with the attorney responsible for presenting cases to the grand jury (to assess whether an indictment would be issued if the case were presented), some of his senior trial attorneys (to determine whether a jury would convict), and attorneys in the appellate division (to be sure a conviction would be defensible on appeal).  I know a lot of people don't like Joe Deters, but this had to be an agonizing decision.  And it's a decision with no political benefit on either side.  Either choice he made would have pissed off some very vocal, emotional people.

Second, some have accused Joe Deters of inconsistency when it comes to child endangering charges.  I don't think that's fair.  There may be some systemic unfairness, but the blame for that does not lay at Deters's feet.  Much of the inconsistency is because of the way various types of crimes are handled in Hamilton County.  Here's why.

A misdemeanor offense is initiated by the filing of a complaint.  All that's needed is for an officer to sign a complaint, warrant, and affidavit.  After an initial appearance where bond is set, the case will then be set for trial.  Prosecutors don't get involved (at least in 99.9% of cases) in charging decisions regarding misdemeanors.  Felonies, though, are different.  For those cases to proceed before a judge, a grand jury has to return an indictment.  Often, police officers will file charges and wait to see what happens in the grand jury.  But any time a death occurs, the police will consult with the Prosecutor's office prior to filing anything, and those cases will often involve "direct indictments," meaning that a complaint is never filed.  So while Deters had to make a decision in the Edwards case, he would not do so in a child endangering case that did not result in physical harm (such as a "dirty house" case or a case in which a child was left in a car for a few minutes).  Edwards would have been charged with a felony; the latter examples are misdemeanor offenses.

I've also been hearing a lot of talk about mothers charged with endangering for falling asleep or briefly leaving their kids alone.  I won't pass on the merits of those cases (suffice it to say that I believe we are over-using the endangering statute).  If the offense occurred inside the City of Cincinnati, then Deters's office never touches the case:  misdemeanors within city limits are prosecuted by the Cincinnati Prosecuting Attorney (really, the City Solicitor).  The HamCo Prosecutor has no authority or control over those cases.  

Maybe we should have some serious discussion about the way the system works.  Should we really permit charges to be initiated just on the signature of a police officer (or much worse, by "referral"--an officer giving a form to a citizen to permit the filing of a criminal charge, which means the officer won't be involved in the case at all, generally)? Edwards may have benefitted because she could afford to retain counsel early in the process.  An indigent defendant wouldn't be entitled to counsel until charges were filed.  Maybe we need to make counsel available at pre-filing stages.  But people who are complaining about unfairness and injustice are noticing symptoms of systemic problems, and shouldn't single out Deters as a scapegoat in this instance.

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