Checks and balances: How DougCo prosecutors determine what to charge

Heather Willard

Heather Willard / NewsBreak Denver / May 4, 2023

(Douglas County, Colo.) Who ensures the district attorney’s office is ethically and appropriately filing charges? Similarly, who advises law enforcement on whether their search warrants and other legal tools are ready for a judge?

In the 18th Judicial District Attorney’s Office, these positions are filled by a handful of prosecutors who focus on possible incoming felony cases and search warrants, as well as providing 24/7 advice for law enforcement in the district (Elbert, Lincoln, Arapahoe, and Douglas Counties). Clinton McKinzie, chief deputy district attorney of the 18th Judicial Intake Unit, said his unit reviews thousands of cases each year — and turns away thousands more.

According to the 18th Judicial DA’s Office, prosecutors filed 4,257 felony cases in 2022. Another 4,049 felony cases were reported to have been resolved in 2022. In the first quarter of 2023, the office resolved 907 felony cases — a 7% decrease from the first quarter of 2022.

The total number of cases filed each year has also been steadily decreasing, according to data provided by the 18th DA’s Office. In 2017, there were over 33,000 cases filed. Last year, there were 24,919. However, cases per trial prosecutor have risen since 2017 from about 18 cases per prosecutor on average each quarter to 27 felony cases.

The 18th DA’s intake unit is not a new concept — large district attorney’s offices nationwide have employed prosecutors to screen incoming cases.

18th DA Public Information Officer Eric Ross said the ability to screen cases allows for ethical filings and helps prevent some political fights for the elected district attorney.

“Having this intake unit really gives us the ability to screen cases and really cross our T’s and dot our I’s, so we’re not just accepting all cases and charging as presented, and then finding out in 2-3 months that there’s a technicality or something was done wrong, and then the case is dismissed,” Ross said. “There’s the call then for ‘what happened here,’ ‘who dropped the ball,’ and ‘this isn’t justice,’ and we try to avoid those on the forefront and do our research on the forefront so that when we’re prosecuting a case we know we have a solid case that we are ethically pursuing.”

McKinzie explained that the review process has three main aspects. First, there must be knowledge that the individual(s) committed the crime, and not just a general hunch or feeling.

“Before we are willing to charge someone with a felony, we must believe that they did it, not just that we think that they did it,” McKinzie said. “This is a point of a lot of contention, because police can arrest on probable cause, but we don’t charge unless we know they did it.”

Secondly, prosecutors check the provided evidence to see if it supports the theory that a particular individual committed the crime. McKinzie said the goal is to be able to convince the 12-person criminal juries to return a unanimous, guilty verdict and not waste court and litigator time.

Third, the intake unit employees discuss whether charging is the ethical and right way to proceed.

“This is basically, is it the right thing to do?” McKinzie said. “There are times when we have people who are arrested for felony offenses that we are not going to charge just because it doesn’t belong in the criminal justice system.”

The prosecutor gave an example case to illustrate the point: A 20-year-old man in Aurora who had a troubled background, but no criminal record, had gone to a party at his best friend’s apartment, accompanied by his girlfriend. At the party, the 20-year-old has a fight with his girlfriend, and leaves the apartment.

After cooling off, he returns to the apartment and while looking through the window, he observes his best friend and girlfriend making out inside. The 20-year-old then entered the apartment through a window and broke the best friend’s nose before leaving. The suspect also called an ambulance to check on his friend, which involved the police.

The police arrested the 20-year-old man for burglary — breaking and entering a building and injuring the individuals inside. If convicted, the mandatory minimum sentence imposed by law would be a 10-year stint in prison.

“This 20-year-old was looking at spending a good part of his young life in prison as a mandatory sentence offender,” McKinzie explained. “When we looked at it here, we didn’t feel it belonged in the criminal justice system. We contacted the victim, we contacted the girlfriend — none of them wanted it in the system. So we got him out of jail and that was the end of it.”

McKinzie said this level of prosecutorial discretion is stressful due to the level of ramifications for defendants.

“Our authority is such, our discretion, that we can really ruin someone’s life,” McKinzie said. “Or, if we make a wrong decision, and you know that guy (in the example) goes back and shoots his best friend, then we’re going to feel guilty for not having charged him.

“So, we’re having to make those decisions all the time and do the best we can, we’re constantly discussing things with the secretaries and with one another, just to try and see if we’re doing the right thing.”

McKinzie said there are no classes or continuing education seminars focusing on these decisions, although prosecutors do take at least 5 hours of legal ethics education annually. He staffed his unit with a variety of prosecutors to create a good balance. He noted some prosecutors are more aggressive in charging than others, and the team hails from a variety of backgrounds. Ultimately, the team has to be able to live with whatever charging decisions are made.

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Public safety reporter in DougCo, Denver metro. Previously: Pueblo Chieftain public safety reporter, Athens Messenger associate editor. Caffeine fiend, cat mom and lover of all things spooky.

Broomfield, CO

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