charging document wdj - pacga.org

1

CHARGING DOCUMENTS:A SHORT NOVEL

William D. JohnsonAdult ANE Resource ProsecutorCell: 706-969-2515 // Email: [email protected]

COPYRIGHT © 2015 PROSECUTING ATTORNEYS’ COUNCIL OF GEORGIAwww.pacga.org

Prologue

• Follow your office’s policies and procedures. (Say it with me…)

• “Do the right thing.” –Pete Skandalakis, Executive Director, PAC.

CHAPTER ONE: A FEW CONSIDERATIONS

“Have I even read the damn thing?”–Most prosecutors when asked a question about a case.


2

The Aforementioned Considerations

• Statute of Limitations• Venue• Read reports, speak to witnesses• Have the entire case (and actually read it)• Assess & initiate remaining work. • Review the criminal history

Statute of Limitations

SOL Means…OCGA 17-3-1

• Murder- commenced any time• Offenses penalty Death or Life -7 years• Forcible Rape – 15 years• General Felonies- 4 years*** (usually)• Misdemeanors-2 yearsSee caveats for DNA in certain charges.

3

SOL Means…• Not included:

– When the accused is not a resident in the state.

– When the offender OR crime is unknown. – The accused is a gov’t employee who

converted property or funds through that employment.

– Certain fiduciary matters. See 17-3-2.

Tolling????

SOL Means…

4

Not so SOL…• See OCGA 17-3-2.1

– Certain crimes against victims under the age of 16 have no SOL….after July 1, 2012.

– There is a different SOL for all this for crimes occurring between July 1, 1992, and July 1, 2012.

• LOOK AT THE STATUTE…

Venue• 17-2-2—county where crime was

committed. Or where you can prove beyond reasonable doubt it may have been committed.

• Elder Abuse (16-5-104)• Theft (16-8-11)• Fraud and others…check code sections!

Timing Is Everything• After 90 days, a def. is entitled to bond. • Juveniles must be indicted in 180 days and

cannot go beyond scope of petition. • Barker & Doggett speedy trial issues.

– You’ve generally got 1 year before this is an issue.

5

I Said Run Faster! • After a year, the delay is presumptively

prejudicial, and you will argue 4 factors: 1. Length of the delay; 2. Reason—government or defendant;3. Def. assertion of the right; 4. Prejudice to the Def.

CHAPTER TWO: SO MANY STUPID DOCUMENTS

“Does anybody have an easy list of cases I can accuse?” –A daily series of emails.


The Uniform Traffic Citation (UTC)

• Used for the following: – Motor vehicle violations– Width, height, length of vehicles/loads– Common carriers/contact carriers– Underage in possession.

• Not to be used in Superior Court (40-13-3)• Generally, think misdemeanors.

6

Citation/Summons• There are some misdemeanor cases may

be done by citation/summons including ordinance violations and the following: – 16-7-21, 16-8-14, 16-8-14.1, 16-13-30, 3-3-23

• Allows “print and release.” – Cite state offense on form– Print, ID, warrant check.

• Or, just get a warrant.

Citation/Summons• Make sure the citation is specific.

Strickland v. State, 349 Ga. App. 673 (2019)

7

Accusations 17-7-70.1• Misdemeanors• Felonies bound over or waived Committal.

– Theft– Forgery and fraudulent practices– Escape/offenses related to confinement– Possession of Firearm by CF/FOA– Habitual Violator– Possession and sale of controlled substances

under 16-13-30.

Accusations: THOU SHALT NOT…

• Use for felonies punishable by death or life in prison.

• Use for cases where peace officer/public officials are charged w/in official duties (17-7-52(b)), (45-11-4).

• Use for cases where a GJ had heard the evidence.

• Omit an affidavit if seeking arrest on Accusation.

INDICTMENTS

8

Start from the End• What is it that you want to argue in closing• This will identify your strongest charges and

counts• Indictments should tell the story of your case• Don’t overcharge

– Don’t confuse jury– Clear and concise– Don’t create more opportunities for disagreement– Demonstrates your integrity

The FormOCGA § 17-7-54

Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct. The form of every indictment shall be substantially as follows:

Georgia, County. The grand jurors selected, chosen, and sworn for the County of , to wit: , in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of ; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.

Demurrers (General or Specific)• Two main criteria:

1. Essential elements of the crimes “and apprise” the defendant of what to meet at trial.

2. Show with accuracy to what extent defendant may plead a former acquittal or conviction.

• Also, name the victim.

9

DemurrersBUT HOLD ON!

Demurrers (General or Specific)• State v. Grube, 293 Ga. 257 (2013)

– Computer child porn case. – Charged victim as “Tiffany” which was the only

name Defendant knew the alleged victim by.

Dates! (Not the fun kind)• Allege a specific date. • BUT—if evidence does not permit, provide

a date range and be ready to back up why that range was chosen.

• If you give a range, make sure a specific date is not essential to the charge, e.g. 2 robberies same week, and differentiating.

10

Dates! (Not the fun kind)• Picklesimer v. State, 353 Ga. App. 718 (2020)• Dates used came from:

– Forensic interview– Abuse occurred during visitation w/ father, and

mother could not be more specific b/c there was not a set visitation schedule.

Dates! (The Eavesdropping Version)

In the name and behalf of the citizens of Georgia, charge and accuse ALICIA NICOLE PARKS with the offense of INVASION OF PRIVACY (O.C.G.A. 16-11-62) for that the said accused, BETWEEN THE 1ST DAY OF JUNE, 2010, AND THE 30TH DAY OF JUNE, 2010, EXCLUDING HOWEVER, JUNE 6, 13, 20, AND 27, 2010, in the County aforesaid, did unlawfully through the use of a cellular phone, a device, without the consent of all persons observed…

Mutually Exclusive Verdicts

11

Mutually Exclusive Verdicts• Middleton v. State, 309 Ga. 337 (2020)

– Defendant convicted of Hijacking a MV and Theft by Receiving (the same) MV.

– Um….ya can’t do both. But nice try…– He can’t be BOTH the principal thief and he

one who received it w/o intent to return it.

Unit of Prosecution• To avoid mergers of charges make the dates a

material allegation.• for that the said accused between the 1st day

of January, 2015, and the 31st day of January, 2015, the exact date of the offense being unknown to the grand jury, in the County aforesaid, did commit an immoral and indecent act to AO, … said dates being a material allegation of this count…

The Jury Is So GRAND• Know the terms of Court/Grand Jury. • NOT a public proceeding. • Must be a quorum…check it each case. • Defendant and victim names (conflicts). • Prepare & Swear your witnesses. • Address exculpatory evidence • You advice, but can’t stay for deliberations.

12

The Jury Is So GRAND• 15-12-61

– A grand jury should have minimum 16 person, maximum 23 persons.

– The votes of at least 12 allow for an indictment.

CHAPTER THREE: JUVENILE PETITIONS—PLEASE, DEAR GOD, NO.

“What language are they speaking?” –Any ADA unfamiliar with Juvenile Court


Petitions, Complaints…fun• Juvie cases begin with a Complaint, which

is similar to an arrest warrant. • Intake to a juvenile facility is handled by

the arresting officer and intake officer at Dept. of Juvenile Justice.

• W/in 48 hours of detention, the court must hold a hearing.

13

Timeline: Released Child• Detention Hearing: 48 hours• Petition: 30 days after Complaint/release• Summons: 72 hrs before hearing• Arraignment: 30 days after Petition• Adjudication: 60 days after Petition• Disposition: 30 days after Adjudication

Approx. 122 days maximum.

Timeline: Detained Child• Detention Hearing: 48 hours• Petition: 72 HRS after detention• Summons: 72 hrs before Adjudication• Adjudication: 10 DAYS after Petition• Disposition: 30 days after Adjudication

Approx. 45 DAYS maximum time.

Missed Deadline?

14

Petition Contents**May be amended anytime prior to

Adjudication Hearing.** • Facts which give rise to jurisdiction. • Best interest of child and public. • That the child is in need of supervision,

treatment, or rehabilitation. • Name, age, residence of child.

Petition Contents• Name and residence of parent, custodian,

legal guardian, or if this is unknown. • If unknown, the name of any adult relative. • If in custody, place and time. • If this is a designated felony charge. • List any of the above that is unknown as

“unknown.”

DF: Class A (15-11-2(12))• Aggravated Assault (some)• Aggravated Battery• Armed Robbery (no firearm)• Home Invasion 1st Deg.• Trafficking Drugs• Kidnapping/Hijacking• After 3 prior felony adjudications.

15

DF: Class B (15-11-2(13))• Some Aggravated Assaults• Smash and Grab Burglary• Possession w/ Intent to Distribute• Robbery • Racketeering• Battery of School Personnel• Certain weapons charges

A Word to the Wise• Regardless how many petitions/

adjudications, there is ONE disposition. • Consider jurisdiction (Superior/Juvenile)

very carefully. • Consider venue carefully 15-11-490. • Learn the vocabulary.

Glossary of Terms• Complaint = Arrest Warrant• Informal Adjustment = Pre-trial Diversion• Petition = Accusation or Indictment• Adjudication = Bench Trial• Disposition = Sentencing Hearing• Admit/Deny = Guilty/Not Guilty• DJJ = Department of Juvenile Justice• CHINS = Children in Need of Services

16

CHAPTER FOUR: ETHICS—YOU SHOULD HAVE THEM

“See, what had happened was…”–Someone whose done something unethical, probably.


Responsibility

NDAA Standards• 4-1.1 Prosecutorial Responsibility

– The decision to initiate criminal prosecution should be made by the prosecutor’s office.

– Prosecutors should, at the earliest practical time, decide whether the charges should be pursued.

17

ABA Standards 3-3.9• Do not, do not, do not institute or permit

charges or the continuing of a case not supported by probable cause.

• FURTHER—do not pursue a case in the absence of sufficient admissible evidence to support a conviction.

GA State Bar Rule 3.8• The prosecutor shall:

– Not pursue a case not supported by probable cause.

– Not block an accused from getting an attorney.

– Make timely disclosure of all evidence tending to negate guilt or mitigate offense.

GA State Bar Rule 3.8The prosecutor in a criminal case shall:a.exercise reasonable care to prevent

persons who are under the direct supervision of the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under subsection (g) of this rule;

18

Epilogue

• Do the right thing!

• Also, you can’t sue me for this…This presentation may contain materials created by others. Such material is used under a claim of fair use pursuant to the Fair Use guidelines in face-to-face instructional education activities. Additional use or distribution of that material is prohibited.

charging document wdj - pacga.org

Documents