Donald Collins, now twenty-seven, is accused of burning Robbie Middleton when Collins was thirteen and Middleton was eight. Middleton died last year of a cancer that “only comes from enduring multiple, painful skin grafts for serious burns.” Montgomery County, Texas is considering charging Collins as an adult, but in 1998 a juvenile had to be at least fourteen years old to be certified as an adult.
It looks to me like Montgomery County Attorney David K. Walker thinks that prosecuting the defendant would violate the ex post facto clause, but lacks the backbone to just dump the case. So he asks Attorney General Greg Abbott for political cover.
From the AG’s opinion letter:
Dear Mr. Walker:
You seek our opinion regarding a defendant’s possible claim that a prosecution for murder would violate the ex post facto clauses of the United States and Texas Constitutions. Your letter to this office also asks whether the Montgomery County District Attorney’s Office is authorized to undertake such a prosecution. Request Letter at 1.
* * * * *
Although you argue that there is no case “directly on point” addressing this issue “from either the Fifth Circuit or the Supreme Court of the United States,” you state that decisions by appellate courts in other jurisdictions–whose opinions are not binding in Texas–seem to counsel against the prosecution at issue in your request. (4) Your brief indicates that all of the cited cases “seem to dictate the same conclusion: that the current language of [section] 54.02(j)(2)(A) cannot be applied to conduct occurring prior to January 1, 1999, because such application would subject the respondent to a greater punishment than was previously available.” Id. at 5. Nevertheless, you conclude that, “[b]ecause Texas courts would not be bound by any of the cases discussed above,” both your office and the District Attorney’s Office agree that the case at issue should be transferred to the district court for felony prosecution. Id. at 1, 6. You ask whether “an adult prosecution for the offense of murder [would] be authorized under current law if the deadly conduct occurred when the perpetrator was a juvenile in 1998, but the death of the victim did not occur until 2011, at which time the perpetrator was an adult.” Request Letter at 1.
So what’s the answer, AG Abbott? If the defendant couldn’t be prosecuted as an adult when he committed the crime, but the law changed later so that he could, can he now be prosecuted as an adult (with more severe punishment than as a juvenile)?
As we have noted in an earlier opinion, “[a] prosecuting attorney ‘has great discretion in deciding whether, and which offenses, to prosecute.’” Tex. Att’y Gen. Op. No. GA-0765 (2010) at 1 (citing United States v. Molina, 530 F.3d 326, 332 (5th Cir. 2008); Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004)). In that opinion, we stated:
Courts recognize that prosecutorial decisions are ill-suited to judicial review because such decisions include consideration of factors involved in initiating a criminal case[, such as] the strength of the case, the case’s deterrent value, and the government’s enforcement priorities. Accordingly, courts afford prosecutorial decisions substantial deference.
Id. (citations omitted). The possibility that a defendant in a criminal case will claim that his prosecution is constitutionally barred–or otherwise raise a defense to avoid prosecution–is a factor that prosecutors may choose to weigh as they determine whether to prosecute a defendant. Within the confines of a prosecutor’s duty “not to convict but to see that justice is done,” (5) the factors a prosecutor elects to consider when evaluating how to proceed in a case are squarely within the scope of prosecutorial discretion. See id. at 2; see also Tex. Att’y Gen. Op. No. GA-0246 (2004) at 3 (recognizing difficulty in proving intent in circumstances of possible criminal offense under section 143.006, Local Government Code, and noting that “whether to proceed in such a case is a matter squarely within prosecutorial discretion”).
S U M M A R Y
A county or district attorney’s determination regarding the initiation of further proceedings falls within the scope of prosecutorial discretion.
See what Abbott did there? When he was asked if an adult prosecution would violate the ex post facto clause, he said, “you have discretion.”
Well, yeah, the prosecutor has discretion to bring a prosecution that’s constitutionally barred. But the courts don’t have discretion to allow the prosecution. If adult prosecution is barred by the Ex Post Facto Clause, the case will get kicked at some point, and the state will have wasted its resources and the court’s, and will have held the defendant in jail, for a charge that should never have been brought.
In the Chronicle article the complainant’s mother says, “They have nothing to lose by trying.” To the contrary: unless the trial court dismisses the case for an ex post facto violation, even discounting the defendant’s incarceration, this will be a costly prosecution—six figures, easy, between prosecution expenses, defense expenses (also on the county’s dime, and including at least a couple of expensive experts), and court expenses. Worth it? For the state ultimately to lose in the Court of Appeals, the Court of Criminal Appeals or U.S. Supreme Court? Maybe the years of incarceration Mr. Collins is likely to endure while the litigation is pending will gratify the complainant’s mother; she might think it is worth it, but the taxpayers of Montgomery County might dissent.
I expect that the state will argue that the Ex Post Facto Clause does not apply because the aggravated assault only became a murder when Middleton died, which was after the law changed. The Supreme Court said in Johnson v. United States, “The heart of the Ex Post Facto Clause, U.S. Const., Art. I, § 9, bars application of a law ‘that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed….’ To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted” (my emphasis). The Ex Post Facto Clause would make no sense if the State could avoid it by defining a crime so that the time of the conduct didn’t matter: henceforth it shall be a felony to have worn purple socks last Tuesday, if people still remember it.
An AG’s opinion is not binding on the courts, but Texas courts, for some reason, consider them persuasive authority. (Why should the AG’s opinion be any more persuasive than any other lawyer’s? Law Geek Alert: When you follow the chain of cases cited for this proposition in the Court of Criminal Appeals, the trail ends at Tussey v. State, 494 S.W.2d 866 (Tex. Crim. App. 1973), which just says so in a footnote.)
That Abbott doesn’t address the question suggests to me that the only answer he could give is in the affirmative: this fact situation seems to fit squarely in the heart of the Ex Post Facto Clause, and there is no contrary authority, so the prosecution will ultimately probably be held to violate the constitution. By not addressing the question, Abbott allows Walker to go into court without an AG opinion already against him.
I suspect that’s not quite what Walker was hoping for.