Judicial Reform

Jay Chilton | August 18, 2017

Current and former prosecutors shed light on legal procedures

Jay Chilton

Why would an Oklahoma district attorney file felony charges against a state official and then drop those charges, only to declare that the charges could be refiled at a later date? Does this mean the official should not have been charged in the first place? Does it indicate that the justice system is too hasty in seeking sanctions against public officials suspected of malfeasance?

The questions are relevant in the case of Oklahoma state Superintendent of Public Instruction Joy Hofmeister. She and four others were charged last year with election-related crimes by Oklahoma County District Attorney David Prater. But Prater dismissed the charges on August 1. He also hinted that he might refile the same or, possibly, similar charges down the road.

CIJ interviewed three prosecutors (former and current) to learn why a district attorney would do and say what Prater did. Their answers go to the heart of what it means to charge a prominent person with a serious crime and then, following dismissal of the charges, claim that future prosecution remains on the table.

Hofmeister, a Republican serving her first term, is currently free of the legal problems dogging her since last November. She’s also now free to focus on her 2018 reelection campaign.

“This is a joyful day for me and my family and a day we have long anticipated,” Hofmeister said after the charges were dismissed. She indicated that the dismissal was the final outcome of the investigation and is confident in the presumed resolution despite Prater’s statement that the investigation would continue.

Tim Harris, one of the prosecutors interviewed by CIJ, served as Tulsa County District Attorney for 16 years and as Assistant DA in the same office for 12 years prior. The Republican is currently running for Congress in Oklahoma’s U.S. House District 1.

“We all realize that the burden of proof, when you go to trial, is beyond a reasonable doubt,” Harris said. “So the filing mechanism at the time of filing a criminal charge is an evaluation of facts, evidence, and law, knowing you must have evidence of probable cause. But you must be cognizant that if your case goes to a jury trial you would have to prove it beyond a reasonable doubt.

“In 1994, we (in Oklahoma) went to what’s called ‘mutual discovery.’ The State is required, upon request, to give the defense names of witnesses to be called at trial, copies of their police reports, investigative files, forensic testing, blood work and DNA, and all of the things that go into a criminal investigation. The defense has a reciprocal duty to share the same with the state if requested and both sides are required to share significant summaries of the witnesses’ statements.

“There should be a free flow of information between the defense and the prosecution. Often times, you get further information that might lead you to believe that the probable cause I once had is maybe not as strong as I thought, so I’m going to dismiss and do further investigation. That’s an option that every DA has.

“If I thought (while serving as DA) some area of an investigation needed some further work, I would … go back to the original investigative agency and say, ‘Hey, we went ahead and filed this charge. On further review, I need more information about this issue.’

“You try to get that done before the preliminary hearing, but certainly before trial.”

Prater, a Democrat, dropped the charges against Hofmeister just days before a scheduled preliminary hearing, which would determine whether the case should continue to the trial stage.

Harris said that in some situations the need could arise to dismiss and refile, in order to provide the investigators the time necessary to gain the requested information.

He said that another reason a case could be dismissed and refiled is if the new information uncovered by the investigators indicates that different charges would be more appropriate, be they more serious or less serious in nature.

“You would have to dismiss and refile to do that,” he said. “And that does happen. That does happen occasionally because you’re trying to be ethical to everybody involved. Let’s say I file charge A, and my investigation reveals that it’s not A crime, it’s B crime, whether it’s more serious or less serious, you now know that A is not really supported like you thought it was. To get to either the higher crime or the lower crime, you would go ahead and dismiss the A charge that you originally filed.”

When asked how rare the situation is when a prosecutor needs to dismiss and refile, he said, “It doesn’t happen commonly, but I can’t say that it’s a rare exception. Every case and investigation needs to rise or fall on its own merits.

“In my career have I done it? Yeah, I’ve done it. There are times you might file a case that you believe at the time is a DUI. If later someone who was involved in the DUI accident dies, you dismiss the DUI and you file a first-degree manslaughter. There’s lots of different situations it can happen in.”

The second official CIJ talked with is a current prosecutor in Oklahoma. As such, the prosecutor requested anonymity.

“The issue of filing charges, and then dismissing them, and then refiling, that is entirely legitimate under many circumstances,” the prosecutor said. “It’s an entirely legitimate law enforcement and prosecution procedure. There are several instances in which a prosecutor would choose to do that.

“Sometimes it happens because after the charge is filed, new information comes out that may either exonerate the person that you have originally filed charges on, or it may make them even more culpable than what you already think they are.

“Then, you simply need more time to chase down whatever that new information is so that you can make sure that you’ve gotten it right.”

Another circumstance under which it would be legitimate to refile charges is if the investigation widens, the prosecutor said. “And, for whatever reason, you need more time or you need to dismiss that [original] charge, stop litigating that charge, to preserve the overall integrity of the entire investigation.”

One hypothetical scenario was posed as an example of the situation being described. If a DA filed charges in a case and, through the process, investigators alerted the prosecutor that the original case was “just the tip of the iceberg” (such as saying there could be multiple conspirators involved), then it would be appropriate to dismiss the first set of charges and refile at a later date. This would avoid alerting the additional conspirators.

The prosecutor said that dismissal with intent to refile does happen, adding that it’s “fairly rare, but not uncommon.”

Each case, the prosecutor said, is litigated on its own merits. Most of the time, cases are built on a standard linear form of logic: Fact A combined with Fact B leads to Conclusion C.

However, in more complicated cases the logic is less simple, yet needs to be understood just as fully. Thus, it takes more time to investigate. Essentially, the more complex an investigation is, the greater the chances of a dismiss-and-refile scenario.

The final prosecutor CIJ spoke with was Charles “Chuck” Richardson of Tulsa. Richardson served as an Assistant District Attorney for Tulsa County after graduating from the University of Tulsa College of Law where he attended night school while working full time in the Tulsa County District Attorney’s Office as an intern. Following three years in private practice, Richardson was appointed to the post of Tulsa County DA by Governor Frank Keating to replace Bill LaFortune, who resigned. Richardson now practices personal injury law as a partner in the Tulsa law firm Richardson Richardson Boudreaux.

Sometimes, Richardson said, prosecutors drop cases to refile because of unavailability of a witness they need, unavailability of information they either thought they had or they now believe they need, or to make the case as strong as possible. Sometimes, they say they’re dropping the case with an intent to refile, and they really don’t. They’re just dismissing it because they don’t want to deal with it anymore. Or they could be getting political pressure.”

He said that a case can be dropped and refiled when the charges change as well.

“Let’s say I get a person bound over on a kidnapping charge, and then the person (who was kidnapped) dies,” he said. “Well, I can’t turn around and amend the charge now to add murder, because the defendant has not been given their preliminary hearing on the issue of murder.”

All three of the attorneys who were interviewed reiterated that their comments were not intended to reflect on any specific case, but rather to provide CIJ’s readers with some perspective on how the process of filing charges and prosecuting a criminal case for the state or county works.

Jay Chilton

Independent Journalist

Jay Chilton is a multiple-award-winning photojournalist including the Oklahoma Press Association’s Photo of the Year in 2013. His previous service as an intelligence operative for the U.S. Army, retail and commercial sales director, oil-field operator and entrepreneur in three different countries on two continents and across the U.S. lends a wide experience and context helping him produce well-rounded and complete stories. Jay’s passion is telling stories. He strives to place the reader in the seat, at the event, or on the sideline allowing the reader to experience an event through his reporting. He earned a Bachelor of Arts degree in journalism from the University of Central Oklahoma with a minor in photographic arts. Jay and his wife live in Midwest City with three dogs and innumerable koi enjoying frequent visits from their children.

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