Quick Hits – How the felony charging system works

That’s the question I’ve been consistently hearing since I broke what’s very likely to be the real story of the Burlington School District bus aide incident. And those same folks inevitably follow that one up with, “If there’s any doubt she hit the special needs child, how can she possibly be charged with a felony?”

Ah yes! As one of my former sainted Beacon-News managing editors liked to say, “They could indict a ham and cheese sandwich if they really wanted do.” That’s how easy it is. Don’t get me wrong, the system generally works because felony prosecutors don’t like spending time on losing causes, but when a case goes viral like this one, that’s when the system starts to break down.

Please allow me to explain!

If the arresting agency deems the alleged crime falls in the felony category, they put their case together and, depending upon the situation, they either call or submit the paperwork to the on-call felony prosecutor. Neither the police nor sheriff’s deputies can unilaterally file felony charges, they must be approved by the Kane County States Attorney’s Office.


But that’s hardly a check and balance because there’s no defense element to the felony determination process. The charging agency is under no obligation to provide exculpatory evidence and they’re well within their rights to present the “facts” in a manner that casts their case in the best light possible.

Though I’m sure you see the potential for abuse, the system tends to work because the state’s attorney’s office would quickly come down on any police department that regularly overcharges defendants.

If the state’s attorney approves the felony charge, the case moves to the indictment stage where the prosecutor takes those “facts” to a grandy jury. They have the ultimate say in whether there’s probable cause for the felony to go forward. And “probable cause” is a far lower standard than beyond any reasonable doubt.

But again, there’s no defense element to this “trial,” which means the prosecutor is under no statutory compunction to tell the whole truth. There’s no right to confront your accuser(s), either.

Both a local judge and attorney reminded me that, even if the prosecution has ten eyewitnesses to the “crime,” nine of whom failed to identify the defendant, they can proceed on the basis of the one positive ID and they don’t have to tell the grand jury about the others. Just as it was with the arresting agency, the prosecutor is under no obligation to present exculpatory evidence at the grand jury point.

That same attorney told me that, thought this part of the felony system is far from perfect, it’s the best one we’ve managed to come up with. And it generally works because even though the grand jury doesn’t get to hear absolutely everything, the judge or jury who eventually tries the case will. For all the obvious reasons, most prosecutors don’t want to develop a reputation for exercising the kind of overreach that means loses felony cases.

Again, the grand jury system tends to fail in high profile cases like the Burlington bus aide, because it’s going to be difficult to find jurors who haven’t heard the news, and the State’s Attorney’s Office will be under immense pressure to convict a person who’s already been tried and convicted in the court of public opinion.

Many of you also complained about the press being sensationalistic in this regard, but that’s not a fully accurate assessment.

Yes! I do find myself accusing Shaw Media and the Daily Herald of being nothing more than glorified police blotters. Though even traffic tickets are public record, whenever a newspaper prints an arrest, it basically becomes a conviction in the press.

But that doesn’t mean those editors are violating any ethical standard by running the story. The truth is, that person has been charged, and the charging documents are readily available to anyone at the Circuit Clerk’s office.

Prior to the print media depression, one of those now extinct old school local reporters might’ve questioned whether felony charges were warranted and performed some sort of investigatory groundwork. But with newsroom staffing at an all-time low, that kind of due diligence is out of the question.

So, shortly after a grand jury indictment, the State’s Attorney’s press release hits the newsrooms and all the papers run it virtually verbatim. It’s neither libelous nor unethical, but it isn’t the best journalism, either.

I think the biggest question our bus aide will face is whether to take a misdemeanor conviction plea deal – if offered. And I think it will be offered because sources told me the bus video is not a slam dunk for either side and the burden of proof is on the prosecution. It’s a heck of a lot better than having a class 3 felony on your record, but if you’re truly innocent, even a misdemeanor conviction will be a very hard thing to swallow.

So, now you know how it works and, yes! My former editor was right! A prosecutor can indict a ham and cheese sandwich if they really wanted to. Though it’s rarely abused, the felony charging system completely favors the prosecution. They know the fact you’re charged with a felony can be a very expensive proposition, which might make some defendants accept a plea because they may not be eligible for a public defender, but they can’t afford a vigorous defense, either.

It’s certain not a perfect system and if you have a better idea, I’d love to hear it.

4 thoughts on “Quick Hits – How the felony charging system works

  1. Where the system real breaks down is when a judge imposed a “trial tax”. That is if you assert your right to a trial and are found guilty your punishment is more severe. Why should that be? Pleading guilty and be found guilty should not result in a longer or more severe penalty. Often happens and is a routine matter in Federal Court. Ask Blago

    • Prosecutors have to be able to offer reduced sentences as an incentive to defendants to plead guilty. If they couldn’t, every defendant would insist on a trial — why not, with nothing to lose? — and the system would break down completely.

  2. Yes Pam. Overcharge and make defendant give up right to trial. You are absolutely right though, if faced with years; take the deal and get one year. Fear is a big incentive and since most people (think jurors) think if you are charged you must have done it. So plead, the American way. Of course you only get charged if you did something wrong. Ask Cruz and Hernandez and lots of others.

  3. …”with newsroom staffing at an all-time low. that kind of due diligence is out of the question…” Newsroom staffing has declined over the past ten years and good journalism has paid the price. The “Fake-News” slogan takes on a more meaning full effect as it applies not only to Newspapers; but TV, Radio, and the awry of political newscast like MSNBC and CNN. With the advertising dollars stretched so thin there is no money to hire staff for “in-depth reporting.

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