Criminal Law Blog
February 23, 2005
Let me tell you about a time when I was a prosecutor to illustrate how affidavits of nonprosecution are used.
I was prosecuting a man for a burglary of a habitation and for an aggravated assault with a deadly weapon. Briefly, the facts were that the defendant had broken into the home of a girlfriend of his ex-wife. Once inside, he stabbed his ex-wife in the leg.
The ex-wife met with me and told me that she did not want her ex-husband to be prosecuted for the aggravated assault he had committed against her. Her friend told me that she did not want the man to be prosecuted for the burglary of her home. I listened to each of them for an hour. Then I handed each of them a blank affidavit of non-prosecution and asked them to fill them out and sign them and to write their reasons at the bottom of the page as to why they did not want this man to be prosecuted.
Both of them did just what I asked. I took the affidavits of non-prosecution and put them in my file. And then I prosecuted the man anyway.
Ultimately he pled guilty and was placed on a deferred adjudication probation. Two months later, the same man was charged with indecency with a child by contact. Was my boss mad at me for only putting this guy on a deferred adjudication probation? No. In fact, he was pleased with my work because I had taken a fairly dangerous guy and had him placed on a serious kind of probation when the victims did not even want him to be prosecuted at all.
My boss wanted vigorous and aggressive, but fair, prosecution. Generally, that’s what the public wants. So my boss was happy with me. On top of that, the victims could hardly say I did not listen to them. Not only did I listen to them, I got their comments in writing and put them in my file. I just chose to use my discretion as an Assistant District Attorney not to do what they wanted me to do.
The lesson, of course, is just because the affidavit of non-prosecution gets filled out doesn’t mean the case is going away.
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