If you are like my office, you generally assume the criminal history obtained at the time of arrest accurately reflects what your defendant is capable of. But far too many times I see situations where we or other prosecutors plea bargained a certain case without knowledge that after making bail on our case the defendant kept right on trucking down the highway of crime, sometimes the day after release. Example: in preparing a 37.07 notice today I discovered the sheriff of the county to the north had arrested my defendant for forgery in 2000. A call to the DA there informed me that the case arose in 1999 and had been pled for 5 years deferred adjudication in February, 2002 (a fact, of course, that was not reflected on the CH run at the time the defendant was arrested in December, 2001 on my charge[note a CH is often mistakenly referred to in police circles as a CCH, when it is anything but "complete"]). I mentioned to the DA investigator that it didn't seem quite right that the defendant got deferred adjudication when he had committed a delivery of marihuana and a delivery of methamphetamine in Hamilton County in September of 2001 and was in possession of methamphetamine and marihuana at the time of his arrest in December. She, of course, agreed things might have been different if only they had known. (I did not question why it had taken so long between the arrest and disposition of their case, or why they had not run another CH check as a result).

Is there any way to prevent this sort of thing from happening? I think defense attorneys pride themselves on being able to hide their client's activities and plead as many pending charges (in different counties) as possible without each prosecutor gaining knowledge of the full picture. Can your offer be effectively conditioned on the defendant making a sworn statement as to his "real" criminal history on the day of the plea? I am going to check to see how our defendant handled the interview for his PSI in Erath County (assuming they did one), but by then it may be too late to do anything and he was likely not under oath. Seems like I remember hearing a discussion once of how a defense attorney should (ethically) answer the question: "Are you aware of any other problems your client has had?"-- I know they have no duty to volunteer that type of info. Kind of reminds me of the question when you're selling your used car: "Is there anything else wrong with the car that you know about?"

I have experienced the same frustration that you describe. There are some things that we can do to improve the flow of information. When I see any indication of a ch in another County I will call that County/District Attorney and try to find out the status of their case. When it is clear from reading the file that there are pending charges in another County and my case is disposed of I will call that County/District Attorney and inform that of the plea and I have even sent a copy of the J & S. The inability to discover and collect admissible proof of a Defendant's CH is a real problem throughout the State and we need to do all we can to fix this problem. I'm confident the regular contribitors to this forum will have ideas to share.

CCH's (from an Investigator's view) are NEVER complete. Each incident/arrest is made up of 3 different agencies submissions - the jail, the CA/DA office, and the clerk's office. So having good, complete info on the CCH depends upon EVERY office to do their part and to enter it in a timely manner. If it's not entered by the jail first, I think an entry is not created at all and it's left off the CCH because DPS will not place an entry on a CCH without fingerprints.

For instance, if an arrest is submitted by mail from a county to DPS (jail doesn't have live fingerprint scan), DPS is approx. 30-45 days behind in creating the entry to the CCH. If the arrest/fingerprints are live-scanned, then it's automatically added to the CCH.

In Travis County, I think they are still about 1 YEAR behind in entering cases to the CCH. Apparently they installed some new programs county wide about 2 or 3 yrs. ago and have never caught up. We find a lot of DWI's from Travis County by looking at the defendant's DL because it's NOT on the CCH.

In my court, we run a CCH when the case is in intake. Any time we find a pending case or a defendant on probation, we notify the prosecutor of that pending case and/or the probation officer. I look carefully for discrepanices in the DL entries and CCH and check defendants thru other counties and local police depts especially if the report reflects some comment about a prior offense. I have told our prosecutors about these problems so they are aware and will not hesitate to bring a case back to us for further "digging". Additionally, I ask the prosecutors to bring me the file the week before trial so that a new CCH can be run. It's some scrambling sometimes at the last minute, but occasionally it's worth it.

I use a stipulation/waiver form that dispenses with the need for a motion for probation but requires the defendant to reveal any prior probation or deferred adujudication cases. A part of it reads as follows:

Probation/deferred adjudication.
___ The plea agreement does not involve probation or deferred adjudication.
___ The defendant seeks probation or deferred adjudication. The defendant has never been convicted of a felony in this state, any other state or in a federal court and has never received probation or deferred adjudication for a felony, except as follows: __________________________________________________
___________________________________________________________________________________________________.

If you later find out the defendant lied, a perjury case could be filed. If you want a copy of the form, e-mail me at sparks@intertex.net

I found as a prosecutor it frustrating that cch's didn't contain prior mip's, pi's, dui's etc. which can be critical information in a dwi or other felonies/misdemeanors involving a car/alcohol. It's probably worth checking with the municipal court where the defendant lived to see whether the guy with the recent dwi had numerous public intox's, etc.

Though a slightly different scenario, maybe the last case in this week's weekly reader is the extreme example of the problem. In Gilmer the defendant comes in and applies for deferred adjudication of his misdemeanor theft charge. Their application requires a defendant to affirmatively state that he has never been convicted of a felony (or the defendant is told to strike out "never"). Mr. Smith signs under oath without striking "never". Later, the prosecutor says she would not have recommended deferred adjudication if she had known Smith had ten previous felony convictions. Duh.

We stopped using similar applications because we not infrequently recommend people for probation who have previous convictions and such an application is technically necessary only where a jury is involved. Ken, I take it your defendants don't object to being required to make such an application even though it places the onus on them to reveal something you may not know and they are waiving the right to trial by jury. That certainly sounds good. My first point would be, if you are going to ask about something they are not required to say anything about, why limit the question to felonies? Your practice seems to assume we have the ability to condition our offer on the making of a disclosure statement. Alternatively, I could always say "the judge will not consider the state's recommendation unless you sign this statement". There has to be a way to convert these masterful defense tactics into at least the threat of aggravated perjury convictions. I am sure the other side will howl about the right to remain silent or find some other reason to avoid disclosure, but as has already been previously discussed, if there is a mechanism for us to ask, there is no right to lie in response. I'm tired of don't ask, don't tell. Someone just advise how best to ask.

The misdemeanor court in our county has plea paperwork much like Ken's. Before my clients sign anything, they are advised of the law of perjury and aggravated perjury. They are also advised that I do desire to keep my license (we generally have to sign that we have discussed the papers with our clients and they understand everything). I had a case where we had to strike out never and reveal a deferred adj. for a felony possession under 1 gram.

Being an ex-prosecutor, I know for a fact the "CCH" is not always complete. If you want to know the full truth, find out what town your defendant is from and call the local police/sheriff and run his name. You'd be very surprised about the other reports that aren't on the rap.