WHY CASES GET DISMISSED

By District Attorney Barbara Romo

I’d like to take this opportunity to explain why cases sometimes get dismissed after they have been referred to the DA’s Office. There are several types of dismissals and a variety of reasons why cases get dismissed. We rely heavily on our law enforcement partners to do complete and thorough investigations before submitting cases to our Office for prosecution.

As I have mentioned before, prosecutors are ministers of justice and as District Attorney, I am responsible for protecting the rights of all citizens in my district, whether they are victims or suspects. While law enforcement normally will submit a case that meets the elements required for probable cause, sometimes we need further investigation to make the case strong enough to prove beyond a reasonable doubt, which is our burden before the fact finder. These cases are sometimes dismissed “pending further investigation.” When a prosecutor dismisses a case it is called a nolle prosequi, which reflects the prosecutors’ discretion whether or not to prosecute. These dismissals are always “without prejudice” meaning we can and do re-file charges if and when the additional investigation is complete. On the other hand, sometimes a case will be submitted for prosecution which may meet all the requirements to allow us to prove the case beyond a reasonable doubt, but there is a constitutional violation such as a bad stop or bad search which precludes us ethically and legally from proceeding with prosecution. We try to use these instances as teaching moments to help our law enforcement partners understand and hopefully not make the same mistake again.

Another common reason why cases are dismissed, either by the Court or by the DA is lack of victim and/or witness cooperation. This is frequently the case in domestic violence cases where victims, for a variety of reasons, do not wish to continue with the prosecution of an offender. In other cases, key witnesses who may have given a statement to police during the initial investigation, make themselves unavailable to testify. This could be from fear of retaliation or due to a complicated familial relationship with the offender for example. When this happens, either the prosecutor or the judge will often decide to dismiss the case. If the judge dismisses the case s/he can either dismiss “with prejudice” or “without prejudice”, depending on the circumstances. If the judge dismisses “with prejudice” the prosecutor is legally precluded from refiling the charges—even if the witnesses decide to cooperate after the dismissal. Sometimes we will dismiss a case (Nolle) in magistrate court and present to the Grand Jury to decide whether there is sufficient evidence to proceed to district court. So, a dismissal or Nolle in magistrate court doesn’t necessarily mean the case will not be prosecuted. And, while our victim advocates work closely with victims and witnesses, we also have to keep in mind that forcing someone to testify might do more harm than good and I am always cognizant and wary of the potential of re-traumatizing victims and witnesses.

Finally, first time non-violent offenders are ordinarily given the chance to enter a diversion program, which if completed will result in a dismissal of the charges. This is an incentive to help individuals who have strayed off the legal path become productive citizens without the burden of a criminal record. Our Pre-prosecution Diversion Program assists these offenders by getting them counseling and other resources to help them deal with issues that led them to make the mistakes that got them in trouble with the law. These individuals also give back to the community with donations of clothes, food, school supplies etc. as well as participating in community service. The goal is to reduce crime by turning offenders into productive and engaged members of our community which in turn makes the community a better and safer place to live.