Pima County Attorney Protocol

Since the early 1980's the Pima County Attorney’s Office has had a specialized prosecution unit devoted to providing thorough and compassionate services to the victims and non-offending family members in child sexual and physical abuse cases. This Special Victims’ Unit currently handles all cases involving: Child physical abuse; Sexual offenses against children and adults (including Sexual Abuse, Sexual Assault, Molestation of a Child, Sexual Conduct with a Minor, Furnishing Harmful Items to Minors, Luring a Minor for Sexual Exploitation and Commercial and Non-commercial Sexual Exploitation); Failure to Register as a Sex Offender; and civil proceedings involving the Involuntary Commitment of Sexually Violent Persons. MISEDEMEANOR OFFENSES: The Pima County Attorney’s Misdemeanor Unit currently handles misdemeanor offenses involving domestic violence, animal cruelty, and indecent exposure. Under some circumstances, a felony prosecutor may “waive” some Class Six felony offenses of child abuse to a lower court (Pima County Justice Court and municipal courts) for treatment as a misdemeanor. MULTI-DISCIPLINARY TEAM (MDT): The Pima County Attorney’s Office participates in the multi-disciplinary team composed of law enforcement, DCS, the Office of Children’s Counsel, the Office of Child Welfare Investigations, medical providers and the Southern Arizona Children’s Advocacy Center both in the investigation and in the prosecution of the aforementioned cases. Members of the Special Victims’ Unit are available to consult and coordinate with the other members of the team investigations of the foregoing crimes. The primary responsibility for such investigations, however, rests with Law Enforcement, and, when appropriate DCS and OCWI. When an investigation is complete and law enforcement believes it has probable cause to believe a crime has been committed and a perpetrator has been identified, the Special Victims’ Unit will be requested to review the case for the “issuing” of charges. ISSUING: One of the attorneys in the unit functions as the full-time Issuing Attorney or “issuer”. It is his/her responsibility to review all cases submitted by law enforcement to determine what, if any, charges will be filed in a case. The issuing attorney will make such a determination based upon a prosecutor’s ethical obligation to hold offenders accountable for all of his/her conduct where there is sufficient evidence to prove the case to a jury beyond a reasonable doubt. The Issuing Attorney is available by telephone to consult with, and provide assistance to, law enforcement and DCS Specialist regarding investigations. The Issuing Attorney also meets with law enforcement units on a regularly scheduled basis to review on-going investigations. The Issuing Attorney is also available to the Adult Probation Department Child Abuse Unit to immediately staff cases involving offenders who are currently on probation in order to take timely action to October 2014 – Pima County Protocols for the Multidisciplinary Investigation of Child Abuse, page 39 protect other members of the household. In all other circumstances, law enforcement personnel make an appointment with the issuing attorney to review cases in which offenders may or may not have been arrested. CASES ISSUED: The issuing attorney will determine the appropriate charges and prepare a summary of the case for other members of the Pima County Attorney’s Office to use. That summary will include all clearly exculpatory information that the presenting detective must provide to the grand jury for its consideration. This summary is not intended to replace the presenting detective’s knowledge of the case and appropriate preparation to present the case to the grand jury. Following the issuing appointment, the case detective will make arrangements to present the case to the grand jury, unless circumstances are such that a preliminary hearing is more appropriate. CASES DECLINED: If there is insufficient evidence to establish the likelihood of a conviction at trial, the issuing attorney will decline the case. Law enforcement of other interested partners may always consult with the Supervisor of the Unit concerning case declination. The County Attorney’s Office will notify the victim and/or the victim’s lawful representative that the case will not be issued. Victims have the right to confer with the issuing attorney regarding the decision not to issue a case. The Issuing Attorney and the Supervisor of the Unit are always available to discuss with the victims and/or their representatives, in a sensitive and compassionate manner, the reasons their case was unable to be issued. IN INDICTMENT OR COMPLAINT: The Pima County Attorney’s Office presents most cases in which it seeks to pursue felony charges to the Grand Jury, a group of citizens who are randomly chosen according to statute. The presenting detective will testify to the grand jury and may testify to hearsay in this limited circumstance. The victim is not generally required to testify at these proceedings; however, the Grand Jury has the authority to compel the testimony of any witness. If the Grand Jury finds probable cause to believe that a crime has been committed, and the person named in the proposed indictment is the person who committed it, the Grand Jury will return a “true bill” and an indictment and the court process will begin. If Grand Jury does not so find, the Grand Jury will return a “no-bill” and the process is over. In some limited felony cases, the Pima County Attorney’s Office chooses to pursue charges by way of a preliminary hearing, rather than presenting the case to the Grand Jury. This option allows both parties to preserve sworn testimony for use in future proceedings, in case the witness in question is unavailable. If the State chooses to proceed with a preliminary hearing, it will give the defense all existing disclosure as far in advance of the preliminary hearing as possible. At the preliminary hearing, the State will present a complaint to a magistrate judge in Pima County Justice Court and call the detective or investigator to testify, as well as any witness whose testimony the State seeks to preserve. The victim may be among those witnesses subpoenaed. If, based on the testimony presented, the magistrate judge finds probable cause to believe that the October 2014 – Pima County Protocols for the Multidisciplinary Investigation of Child Abuse, page 40 defendant committed the crimes listed in the complaint, the judge will “bind the defendant over” for trial and the court process will begin. CASE ASSIGNMENT: The Supervisor of the Unit will assign each new case to an individual prosecutor who remains responsible for that case until disposition. PROSECUTION: Once assigned, members of the Special Victims Unit, usually the trial attorney will make contact with the victim as soon as possible to discuss the court process and seek input concerning possible dispositions of the case. COUNTY ATTORNEY PERSONNEL: The trial attorney assigned to each case is assisted by a paralegal, secretary, victim services advocate and, perhaps, an investigator. The paralegal assists the attorney in preparing pre-trial discovery and motions, handling some pre-trial interviews and maintaining contact with witnesses and the victim and/or the victim’s lawful representative. The secretary also maintains contact with victims and victim representatives as well as witnesses, scheduling pre-trial interviews and monitoring the issuance of subpoenas. Victim Services Advocates act as a liaison between the victim and/or the victim’s legal representative both with the prosecutor and the Court. A Victim Services Advocate may be present at pre-trial interviews, court hearings and can assist in coordinating restitution, counseling or other services needed by the victim or his/her family. A County Attorney investigator can assist in the preparation of cases by locating witnesses, handling evidence, videotaping preliminary hearings or depositions. They also assist in serving subpoenas and providing a variety of technical services. OTHER AGENCY PERSONNEL: Law enforcement; Department of Child Safety; Office of Child Welfare Investigations, Victim Service Providers and Medical Providers obviously play a very important role in the prosecution of cases. Law enforcement agencies have a continuing role to play even after the case has been charged. Detectives, Uniform Officers or other investigators may be needed to assist with additional investigation, particularly if follow-up is requested at issuing. Law enforcement has a continuing responsibility to provide all information developed during the course of the investigation, including interview transcripts, case reports, photographs and physical evidence to the County Attorney’s Office. All law enforcement personnel involved in an investigation are potential witnesses and are, therefore, subject to subpoena for trial and pre-trial hearings. Such witnesses may also be required to participate in a pre-trial interview with the defendant’s attorney. October 2014 – Pima County Protocols for the Multidisciplinary Investigation of Child Abuse, page 41 The Department of Child Safety or the Office of Child Welfare Investigations may have been involved in the joint investigation of a case and/or may have custody of a victim or witness. Accordingly, Department of Child Safety or OCWI personnel may be witnesses subject to subpoena for trial and pre-trial hearings. They too, then, are expected to participate in a pre-trial interview with the defendant’s attorney. Medical Providers are called upon in a variety of settings to assist in the prosecution of offenses handled by the Special Victims’ Unit. In cases of child sexual crimes, a forensic physical examination may be necessary to ascertain the presence of injuries, old or new, test for sexually transmitted diseases or pregnancy, and/or collect evidence. These examinations are conducted in accordance with the guidelines contained in the medical protocol. Records of these examinations are provided to law enforcement, Department of Child Safety and the County Attorney’s Office when necessary for an investigation or prosecution. Emergency Responders such as paramedics, emergency room personnel, consulting or treating physicians in cases of physical child abuse may have observed injuries, old or new, consistent with non-accidental trauma. Records of any assessments, examinations, consultations and/or treatment are necessary for investigation and prosecution of these cases and shall be provided pursuant to A.R.S. §13-3620 (see Appendix A). Medical providers or other personnel may be required to testify at the trial of the suspect and will receive a subpoena for his/her appearance. It will also be necessary for those individuals to participate in the pre-trial interview with the suspect’s attorney. RECIPROCAL RESPONSIBILITIES OF THE COUNTY ATTORNEY’S OFFICE CASE DISPOSITION - CHANGE OF PLEA OR TRIAL: Whether a defendant is offered a plea agreement to a lesser charge(s) or not depends on a variety of factors. These include, but are not limited to, wishes of the victim/victim representative; severity and/or the repetitive nature of the criminal conduct [See Appendix L]; defendant’s prior criminal history; number of victims; age of the victims; and change in circumstances which may adversely impact the ability to prove certain elements of the charged offenses beyond a reasonable doubt. Plea agreements can be advantageous in many cases as they provide some finality for victims via a conviction without the necessity of testifying in a jury trial. All plea agreements must be approved in advance by the Supervisor of the Special Victims Unit. Plea offers will generally include restitution if applicable; probation supervision of at least the term specified by statute for the class felony to which the defendant is pleading; in cases involving multiple counts of sexual crimes or serious physical child abuse cases probation supervision for the lifetime of the defendant; forfeiture of computers; compliance with DCS requests/orders; submission of DNA samples; and special conditions for sex offenders. The assigned trial attorney will seek input from victims/victim representatives regarding any plea offers as soon as the case is reviewed. If, at any time during the October 2014 – Pima County Protocols for the Multidisciplinary Investigation of Child Abuse, page 42 pendency of a case the victim/victim representative disagrees with proposed disposition of a case, the victim will be given an opportunity to meet with the trial attorney, and the Unit Supervisor. Additionally, the victim/victim representative shall advised of his/her right to obtain a lawyer to assist in exercising victim’s rights pursuant to A.R.S. 13-4423, to express any objections to the proposed disposition, and his/her right to obtain counsel to assist in exercising that right, pursuant to Rule 39 of the Arizona Rules of Criminal Procedure. Law enforcement should be notified immediately when a case is set for a change of plea. In the interests of conserving resources, it is important to advise law enforcement of a change of plea so further work on the case, in the form of transcription preparation and laboratory analysis for example, can be halted. Some cases are designated by the Supervisor and/or the trial attorney as “trial only” cases in which plea offers will not be extended to defendants. If victims/victim representatives disagree with this proposed disposition, they are to be accorded the same opportunities as set forth above on Section B (2) (a & b). In rare situations a case may be dismissed due the occurrence of circumstances making it impossible to prove the case beyond a reasonable doubt. Recantations of witnesses do not automatically constitute such circumstances. TRIAL DISPOSITION: Trial Preparation is the responsibility of the trial attorney with the assistance of a paralegal and legal secretary. The trial attorney and legal assistant should meet, or telephonically consult with, each witness sufficiently in advance of trial in order to satisfy disclosure obligations and prepare the witness, within ethical guidelines, for a defense interview and trial testimony. The trial attorney should be present for all defense interviews of significant witnesses, including victims, if applicable, lead detectives and experts. The legal assistant is responsible for being present at all others. In some circumstances, investigators may be present. VICTIM PREPARATION is the responsibility of the Trial Attorney with assistance from the legal assistant and a victim services advocate. The trial attorney, legal assistant and victim services advocate should meet with the victim in order to acquaint her/him with the trial process and develop rapport with the victim. Meetings with the victim should take place wherever the victim feels the most safe and comfortable, e.g. office of the advocate; advocacy center family room; the victim’s home. The trial attorney should discuss with the victim the possible outcomes of a trial. The victim and all children who are expected to testify should be provided the opportunity to visit a courtroom in order to mitigate the intimidating nature of those surroundings. Courtroom protocols and procedures should be explained and children should be permitted to ask questions about what the trial might be like. Though it is acceptable to allow a child to sit in the witness chair, this should not be used to “practice or rehearse” their testimony. Children may be shown the microphone and advised that witnesses should speak clearly and tell the truth to the questions asked. Where lawful victim representatives have indicated their unwillingness to allow child victims or witnesses to have contact with the trial attorney, the trial attorney should seek the October 2014 – Pima County Protocols for the Multidisciplinary Investigation of Child Abuse, page 43 appointment of an independent guardian ad litem or victim representative. Although the victim has the right under the Arizona Constitution and Court Rule to refuse a pre-trial interview with the defendant/defendant’s attorney, the victim or victim representative may elect to participate in such an interview. The trial attorney shall make necessary arrangements for any reasonable conditions requested by the victim including the presence of a Victim Services Advocate or the presence of another support person. The County Attorney’s Office will accord all witnesses appropriate professional courtesy by advising them sufficiently in advance of trial of the day and approximate time of their testimony. All reasonable efforts should be made to accommodate the “real life” demands of witnesses in scheduling their testimony. With regard to young children, it is best to schedule their testimony early in the day rather than later. Courts and the County Attorney’s Office should be mindful of school schedules as well. JURY VERDICTS: The Jury has four options with regard to charges in a trial case: 1. Not Guilty - the jury found, unanimously, that the State did prove the case beyond a reasonable doubt. The defendant is thus acquitted; charges are dismissed and the defendant is free of further prosecution on those charges. 2. Guilty - the jury found, unanimously, that the defendant committed all the charges he/she faced. The defendant will be scheduled for a sentencing hearing. 3. Guilty of some of charges but acquitted on others. These are also unanimous verdicts. The defendant will still be sentenced but only on those charges for which he was convicted. The remaining charges will be dismissed. 4. The Jury was unable to unanimously agree on the defendant’s guilt of some or all the charges. This is called a “hung jury.” The Court will declare that a mistrial has occurred and a new trial will be scheduled. These cases may be resolved by another trial, a change of plea, or a dismissal. The foregoing decision will only be made after consultation with the victim/victim’s representative. SENTENCING: Following a finding of guilt, either by way of plea agreement or conviction at trial, the trial attorney and victim services advocate should discuss with the victim/victim representative the procedures for sentencing of the defendant. Sentencing generally occurs 30 to 60 days following the conviction. During this time the Adult Probation Department conducts an investigation and prepares a Pre-Sentence Report to submit to the Court to assist it in making a sentencing determination. The County Attorney’s file is provided to the Probation Department for its use in preparing this report and the trial attorney is available to consult with the pre-sentence report writer on any aspect of the case. The pre-sentence report writer will contact the victim/victim representative to discuss how the crime has affected him/her and others in the family. The victim/victim representative may advise the pre-sentence of what sentence he/she believes is appropriate for the defendant to receive. The victim/victim representative has the right to write a letter to the Court; to be present at the sentencing hearing and to address the court, in person, at that time. The trial attorney, secretary, legal assistant and victim services advocate should notify, at the earliest opportunity, the victim/victim representative of any change in date or time of the sentencing hearing. Sentencing October 2014 – Pima County Protocols for the Multidisciplinary Investigation of Child Abuse, page 44 hearings may be continued to allow the scheduling of mitigation or aggravation hearings and/or to allow for the completion of psycho-sexual or other mental health evaluations. Sentencing options may include probation, intensive probation, jail or prison or any combination thereof. None of the crimes handled by the Special Victims Unit may be sent to the Adult Diversion Program. POST-CONVICTION PROCEEDINGS: Appeals are taken by defendants after every conviction by trial. This is a review proceeding by higher courts. Appeals of jury verdicts are handled by the Office of the Arizona Attorney General. Victim/Victim Representatives will be kept apprised of the status of appellate cases by victim services advocates from that agency. Defendants may also file Petitions for Post-Conviction Relief with the trial court. These proceedings are handled by the Pima County Attorney and its representatives are responsible for providing notices concerning these proceedings to victims/victim representatives.

https://www.pcao.pima.gov/documents/2014_Child_Abuse_Protocol%20Final.pdf