Charlotte Observer: Openness in explaining decisions

From the Charlotte Observer (3/21/09): For Sunshine Week, the Observer has asked public officials to discuss their views about open government. A different official will be featured each day.

Questions and answers have been edited for clarity and brevity. See for a full transcript. Today’s interview with Mecklenburg District Attorney Peter Gilchrist was conducted by courts reporter Gary L. Wright.

Q: Do you support the concept that “in the face of doubt, openness prevails” for your agency?

I think that “openness” in terms of disclosing how we make decisions, discussing the standard we use in reviewing cases, explaining why decisions have been made in specific cases, and in responding to questions about our decisions has prevailed in the District Attorney’s Office in Mecklenburg County for over 30 years.

Information compiled in criminal investigations and prosecutions are not public records in North Carolina.

Q: Do you agree that agencies should take steps to make information public and not wait for specific requests from the public? If so, what specific steps will you take? If not, why?

I will continue to follow the statutes of North Carolina with respect to police investigations and prosecutors’ files that determine that our files are not public records. I will also continue to follow the Rules of Professional Conduct that govern the conduct of all attorneys in North Carolina, particularly in the area of pre-trial publicity.

I have consistently explained the reasoning that was involved in making decisions on particular cases. I have made that information available when we have determined not to bring charges in cases that generate public interest. I am also willing to discuss the facts of cases and our reasoning in cases that result in trials or guilty pleas, but only after the cases are closed.

Q: What information should be withheld from the public?

I would prefer to approach this by considering what information a prosecutor should provide to the public. The information released should keep the public informed about how prosecutorial decisions are made in general and in specific cases. It should also include summaries of the evidence in specific cases, how it was evaluated, what conclusions were reached, and why the decisions were made.

We should certainly not provide information about victims and witnesses, especially personal information or statements that any reasonable person would realize could cause retaliation or embarrassment.

Q: Mecklenburg prosecutors have repeatedly refused to release information from their investigative files, even after a case is closed. Please explain your rationale.

I have made public what I thought were the relevant factual details and applicable legal reasoning in cases that have received public attention. I have met with victims, their families, attorneys representing victims and families, community leaders, church leaders, and others who have asked to discuss specific cases, even when they were not high profile cases. I have always been open with them with regard to the information but do not give them the actual statements or case file because I do not believe that the entire contents of these files should be public.

I have spent many hours with representatives of the media and have made my staff available to meet with them whenever there have been questions about cases we have prosecuted or about the criminal justice system.

Q: Police and residents complain that too many criminals get plea deals or have charges dismissed by your office, sending them right back onto the street to commit more crimes.

Cases are not dismissed without good reason. No prosecutor has chosen this profession because they like to dismiss cases and to plea bargain. All prosecutors want to try cases and convict criminals, but they soon learn that not all arrests can result in convictions. There are over 200,000 traffic and misdemeanor cases filed and approximately 10,000 felony cases filed each year in Mecklenburg County. A few jury trials may be completed in one day, but the vast majority of jury trials last from two to four days. Other cases, such as robberies and rapes usually take longer, and homicide cases can take weeks or months to complete. It will never be possible for North Carolina or Mecklenburg County to provide the resources to try all of those cases before a jury.

In Mecklenburg County, just as in most jurisdictions in the U.S., only about 3 percent of felony cases are tried. That percentage is often reported as meaning that only 3 percent of the defendants are convicted or only 3 percent of the cases are prosecuted. That is not an accurate statement since most defendants are convicted by way of a guilty plea rather than trial.

The only way to get defendants to plead guilty rather than go to trial is for law enforcement investigations to provide evidence sufficient to convict, for prosecutors to have demonstrated competence in trying and winning cases, and for defendants to feel that they would get a tougher sentence if they go to trial.

Q: What percentage of people have all their charges dismissed?

I have been telling the media, the legislature and others for over 30 years that there is no up-to-date computer system that would supply such statistical information. We can obtain the number of dismissals but cannot determine which dismissals were part of a guilty plea to other charges or outright dismissals for other reasons.

Q: Your office last year reported that police often don’t bring enough evidence for prosecutors to obtain convictions. Your office dismisses one in four felonies because of this insufficient evidence. Will you make public specific cases that prosecutors had to throw out because police didn’t compile enough evidence to obtain convictions?

This phrasing of the issue seems to assume that when police do not provide sufficient evidence for us to prosecute it is a failure of the police. That is not accurate. Our prosecutors meet face to face with the officer in charge of every felony case to go over their investigative file and to discuss the case in an effort to make sure that we have a clear understanding of the evidence and to determine whether we think that there are additional things that could be done to provide any missing information. An arrest can be made with only probable cause, but we must be able to provide proof beyond a reasonable doubt to convict.

If at this meeting the evidence only shows probable cause we discuss ways to gather enough evidence to convict. We decline to prosecute when there are no other ways to get necessary evidence or, after trying to find that necessary evidence, the police are still not able to get it. We write explanations of the reasons for the dismissals and place them in the court files, which are public.

Charlotte Observer Q&A