Arrest Them All, Let the Grand Jury Sort Them Out!


Austin criminal-defense lawyer Jamie Spencer’s blog post on the arrest of a counterfeiter’s victim reminded me of several similar forged-instrument cases I have handled.

In the most egregious one “Charles” advertised some mechanical parts for sale on eBay. The high bidder sent him a cashier’s check for more than the value of the parts, and asked Charles to send the balance of the money along with the parts. The buyer was overseas, but the cashier’s check was drawn on a bank local to Charles.

Charles, being a fairly savvy guy, walked to cashier’s check to the bank and presented it to the teller to make sure it was good. After having Charles endorse the check and put his thumbprint on it, and after copying Charles’s ID, the teller asked Charles to wait a few minutes. Charles sat and waited, and about fifteen minutes later Houston Police Department officers came in and arrested him for forgery. He explained the situation to the police, who called the District Attorney’s Office. The DA’s office accepted charges, and the police took Charles to jail. (The moral of this part of the story: talking to the cops does not help.)
In Texas it’s illegal to (among other things) possess a forged instrument with a) the intent to pass it; and b) knowledge that it is forged. If I possess a forged cashier’s check (or five-dollar bill) but don’t know that it’s forged, I’m not committing a crime.

It’s the government’s job, if they want to charge me with a crime, to come up with evidence that I’ve done so. If they don’t have any evidence that I knew the instrument was forged, they don’t have probable cause and can’t legally arrest me.

In Jamie’s case, Pierre’s friend was arrested and then released after 10 minutes of questioning. Maybe the police or prosecutors in Travis County have better judgment than here — in my case, Charles was arrested and booked into jail. He changed into an orange jumpsuit and ate a bologna sandwich. He spent the night in jail. (Somewhere in there a “judge” rubberstamped his detention and set bail.) He had to pay a bonding company to make bail. He faced a felony conviction. He had to hire me to help him out. He had to take time out from his work to go to court several times. He had to testify before a grand jury. All of this cost him several months of worry, and lots of money.

So what should have happened?

If the police had thought more investigation was needed, they should have taken down Charles’s contact information and done an investigation. But very few police officers ever actually investigate anything.

If the officers thought they had enough evidence (as, clearly, they thought) the assistant district attorney who answered their call should have declined charges, explaining that there was no reason to believe that Charles knew that the cashier’s check was forged, and therefore no probable cause to arrest Charles.

If this first prosecutor hadn’t had the good sense to dismiss the case, then the prosecutor in the court (to whom I provided all of the information that eventually convinced the grand jury to dump the case) should have dismissed it as soon as she understood the facts.

I guess we don’t expect Houston police to make a judgment call like the one the police did in Jamie’s case (we probably should), but we clearly expect prosecutors to do so.
The problem, though, is one of accountability. The prosecutor who accepted the charge had no stake in it — nobody would have held it against him had he not accepted the charge, and he was not responsible for it in the trial court. So he made a decision that screwed up a few months of a (factually and legally) innocent man’s life. (Incidentally, that prosecutor now holds himself out as a criminal-defense lawyer. Go figure.)

The prosecutor in the court, on the other hand, would have been held accountable for the dismissal had she dismissed it herself. Prosecutors are rated in part on their statistics — numbers of trial wins, trial losses, pleas and dismissals. A dismissal wouldn’t have ended her career, but it wouldn’t have helped. So it was easier for her to force the client back to court, to allow him to appear before the grand jury, and then to let the grand jury “no-bill” (find no probable cause in) the case.

Of course the law provides Charles with no meaningful remedy, no opportunity to recover his losses or to make the prosecutors and the police pay. If there were some risk to a prosecutor that his poor judgment could result in personal liability, Charles and I would never have had to meet.

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