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Here's how prosecutor considers charges

by Barry McHugh/Guest Opinion
| March 7, 2014 8:00 PM

I am writing in part to respond to the My Turn article from Larry Tanzer published on Feb. 25, 2014. More importantly, the article provides an opportunity to explain my philosophy and practice in reviewing investigation reports to consider charges, and address the decision relating to the theft from Mr. Tanzer.

I had not reviewed the reports relating to the theft of items from Mr. Tanzer's residence before reading his My Turn article. As is often the case, one of the felony deputy prosecuting attorneys reviewed the reports and recommended that prosecution be declined. Per office protocol, that recommendation was reviewed and approved by Chief Deputy of the Criminal Division. All declinations in felony cases are reviewed by me or the Chief Deputy as a way of assuring a thorough review and consistent decision-making. After reviewing the reports and reasons for declining prosecution, I agree with their conclusions.

My charging philosophy, and that of the attorneys in my office, is directed by the Idaho Bar Rules of Professional Conduct. Rule 3.8 provides that "[t]he prosecutor in a criminal case shall ... refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause ..." Beyond evaluating the evidence presented to us to determine whether probable cause exists, we review the evidence as reflected in reports to determine the strengths and weaknesses of a case.

Mr. Tanzer asks: "Is a prosecutor's win/loss record more important than seeing justice done?" The answer is no. Seeking justice is always our first priority.

The great majority of investigations sent to my office result in charges being filed and convictions obtained. My office works with officers to gather additional evidence that will result in the filing of charges, to improve the existing evidence through the use of technology and expert witnesses, and to consider alternative crimes that can be charged. A decision by my office to decline prosecution of an investigation is never final. Additional evidence may become available and result in the reconsideration of an earlier declination decision.

Prosecutors in my office know that in making charging decisions they should evaluate the evidence reflected in police reports, anticipating likely defenses that will be presented, with the knowledge that we will have to prove the charges beyond a reasonable doubt to a jury. It is my experience that Kootenai County jurors take their obligations very seriously - they consider all the evidence presented to them in deciding the cases in which they participate. At a minimum I want the prosecutors to believe they can prevail at trial. Not as an absolute, but with the confidence to go forward and present a case believing in its merits. It is inappropriate, and in my opinion, a misuse of County resources, to charge someone with a crime because you believe they did it even though you can't prove it.

Do I pay attention to whether we win or lose in trial? Absolutely. Does that mean the office win/loss record impacts the standards we use in making charging decisions? Absolutely not. Trial results in an individual case provide an opportunity to evaluate the original charging decision, what evidence presented itself after the charging decision was made, whether the manner of presentation by the prosecutor can be improved upon, and other factors that can impact a jury's decision.

Regarding the theft from Mr. Tanzer's residence, I will use the same first names used by Mr. Tanzer in his article to discuss our decision to decline prosecution. Ron had been in Mr. Tanzer's residence on at least one occasion to paint, but there is no evidence he later entered the residence to commit a burglary, or stole anything from Mr. Tanzer's residence. Pawn shop records prove he had possession of a number of the stolen weapons, but the only information about how he came to possess the weapons was based on Ron's admission that he received the weapons from Calvin. Ron's claim that the weapons were given to him by Calvin in repayment of a debt is plausible and cannot be confirmed or refuted because Calvin has avoided any contact with the investigating officer. Ron denied knowing the weapons were Mr. Tanzer's or that they were stolen. The evidence does not establish probable cause (a more likely than not standard), and certainly does not establish proof beyond a reasonable doubt, that Ron committed a burglary by entering Mr. Tanzer's residence to commit a theft, or grand theft by stealing the guns or being in possession of the stolen guns with the knowledge that they were stolen.

It is important to remember that while inferences can be drawn from admissible evidence, those inferences must be logical and connected to admissible evidence. While Mr. Tanzer in his article speculates that Ron took the guns in payment for drugs, there is no evidence to support that theory. Further, inadmissible evidence cannot be included in our evaluation of the case. While Ron's possession of the check from a closed account of Mr. Tanzer, and his attempt to write out and pass that check is certainly evidence of his inclination towards criminal conduct, the rules of evidence would likely exclude the use of that evidence. Courts are appropriately cautious about admitting evidence of bad conduct from other occasions for fear that a defendant will be convicted because s/he is a "bad person."

Regarding Calvin, the largest impediment to prosecution is that there is no evidence he possessed Mr. Tanzer's firearms in Kootenai County. The second impediment is that the only evidence we have that Calvin possessed the firearms comes from Ron, whose honesty could easily be attacked. Ron said he received Mr. Tanzer's firearms from Calvin in Washington. There is no evidence Calvin possessed the weapons in Idaho, or transported the weapons from Idaho into Washington. My office can only charge crimes that took place in Kootenai County.

The discovery of Calvin's money clip with identifying cards certainly causes one to question how they got there. Importantly, one of the cards was issued within a year of the time the gun thefts were discovered, so they could not have been dropped during the time Calvin was helping Ron paint Mr. Tanzer's house two years prior to the gun thefts. Still, based on 16 years as a prosecutor, I believe a jury would not be willing to find Calvin guilty because of a lack of evidence that Calvin was inside Mr. Tanzer's residence and stole his guns. Even if a judge did find that probable cause existed, these facts do not come close to presenting proof beyond a reasonable doubt. Therefore, I agree with and support the decision to decline prosecution.

It is my honor to serve this county as Prosecuting Attorney. My office works hard to prosecute criminal conduct and obtain appropriate results. We share the frustration of victims of crimes and officers who investigate crimes when evidence cannot be gathered in order to hold criminals accountable. I appreciate the opportunity to explain why cases do, and do not, get filed. Further questions can be directed to me at (208) 446-1800, or at bmchugh@kcgov.us.