Rejecting a Case (4/27/00)
Metaphorically speaking, on one side my office are the cops that make up law enforcement, and on the other side are the defendants which have become the focus of law enforcement's disdain.

I'm constantly upsetting both sides and this week was no exception.

A few days ago I rejected three cases that had been referred to my office by the North Central Texas Narcotics Task Force. By "reject", I mean that I would not be referring the cases to the grand jury. The cases involved a so-called "Nazi Lab" which, in layman's terms, is the poor man's way to produce methamphetamine. I don't have time to describe the process, but suffice it to say that a quick trip to Walmart in combination with perfectly legal anhydrous ammonia will allow you to produce methamphetamine in your home in a couple of hours. (It kind of reminds you of a backwoods still during the era of Prohibition).

The individuals in question were arrested as a result of a search warrant - the basis of which I called into question. According to the affidavit that ultimately (and erroneously) authorized police to enter the private residence,  a confidential informant, who was unnamed and had never before provided information to law enforcement, had smelled what "he/she believed to be anhydrous ammonia" emitting from a residence. This odor, according to the affidavit, was "confirmed" by a police officer. Unfortunately, the search warrant affidavit contained a fatal flaw in that it failed to state when this odor was detected. That is, if the odor was detected six months ago, there would be no probable cause to believe that any drug lab was still there. (This is referred to the courts as "staleness"). In addition to this error, there is the larger question of whether the mere odor of anhydrous ammonia, without more, authorizes the government to enter someone's home. No appellate case has yet to so hold, and I'm not real comfortable with that proposition.

As an additional side note, the officer that had prepared the search warrant affidavit was subsequently fired for reasons unrelated reasons - a fact that doesn't help this particular case.

The affidavit, under the law of staleness, failed to establish probable cause. Any district judge would have eventually, and correctly, thrown the case out. And even assuming that I could get past the trial judge and win a conviction before a jury, the Fort Worth appellate court would reverse the case in a New York minute. It was a lost cause, and it is my duty to reject lost causes. If a search is illegal (even if law enforcement acts, as here, in good faith), I must reject the case.

That was the action I took in this case.

Whenever I reject a case, it makes law enforcement mad. Sometimes really mad.

After a few days, I received a call from a supervisor with the North Central Texas Narcotics Task Force. To his credit, he was respectful and courteous, but he did wish for me to reconsider my decision. (We primarily talked about whether the mere presence of the odor of anhydrous ammonia constitutes probable cause). Although he did not say it, there is no question that he was not pleased with my decision, and I'm certain that the other officers in the agency will not be happy either.

So is the nature of my job. (Last year, I had to make a decision on 672 cases that were referred to my office).

Ironically, after I got off of the telephone with the supervisor, I met with a defense lawyer in a totally separate case. He wanted me to reduce his client's felony charge to a misdemeanor on the basis that he did not believe, under the law, that I could prove the charge. I refused.

He abruptly and angrily walked out of my office.

My motto has always been "Do the Right Thing" morally, ethically, and legally. By trying to follow this maxim, I had, in the span of thirty minutes, been implicitly accused of (1) being "soft" on crime and not a proper advocate of the Drug War and (2) being overly aggressive and hard nosed as a prosecutor.

This seems to happen almost every day.

I'm beginning to look forward to the day that it ends.

Barry Green is the District Attorney for the 271st Judicial District.

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