Daniel Eichinger: When the DA's office fails to fulfill its gatekeeping role

The Allegheny County District Attorney’s Office is in desperate need of an overhaul. As a public defender in Allegheny County for over 10 years — including several years managing and leading the office’s Trial Division — I witnessed the many systemic failures that plague the criminal justice system.

One such failure is how the DA’s Office provides no meaningful check on the charging decisions of the police. When the DA’s Office routinely neglects to scrutinize police conduct, fails to demand thorough police investigations and prosecutes cases not supported by sufficient evidence, it fails to fulfill its critical gatekeeping role.

While public defenders provide an important check on police and prosecutorial overreach, it is the prosecutor that possesses the immense power to decide who will be charged and prosecuted in the first place. This charging decision can have disastrous consequences to the accused.

Disturbingly, I saw how time and again, the police would charge - and the DA’s Office would prosecute — cases with little to no evidence of criminality. In other words, despite the existence of established law holding that a particular act is not a crime, the police would nonetheless charge the person who committed that act with a crime.

For instance, it is well-settled law that one’s mere presence at the scene of a crime or one’s mere proximity to contraband — whether it be drugs, paraphernalia or a firearm — is insufficient evidence to support a criminal charge, let alone a conviction. Indeed, these factual scenarios present insufficient evidence of one’s criminal intent (i.e., mens rea). Yet a variety of cases regularly cycle through the system where there is no such evidence.

Take, for example, a case where someone answers a question incorrectly on an application to purchase a firearm (charge: false statements to authorities), a contractor agrees to perform work but does not finish the job (charge: home improvement fraud), a person writes a check without sufficient funds in his or her bank account (charge: bad checks), a person possesses something that was stolen months — if not years — earlier (charge: receiving stolen property), and the list goes on. While there is no legal basis to support criminal charges based on such fact patterns, these cases continue to be filed because the DA’s Office continues to prosecute them.

Moreover, it is the DA’s duty to thoroughly screen cases that rest solely on an allegation to ensure they are supported by sufficient evidence. Yet, as a public defender I routinely saw the police file serious charges against someone based on nothing more than another person’s word. In these types of cases, an investigation may either uncover more proof or undermine the allegation entirely. Serious allegations demand follow-up investigations and some form of corroborating evidence before criminal charges are filed.

When the DA’s Office gives the police, who are oftentimes inadequately trained on the law, carte blanche authority over charging decisions, this has a wide-ranging effect: people lose trust in the police; the system becomes bogged down with too many cases; taxpayer dollars are wasted; those charged either languish in jail and/or suffer from the stigma of an arrest record; and, in many cases, those charged still “plead out” to avoid the more severe consequences should they lose at trial (e.g., a felony conviction and/or jail). So, in the end, people who never should have been charged with crimes to begin with become needlessly trapped in the system while law enforcement has fewer resources devoted to investigating and solving serious cases.

Such additional resources are sorely needed considering, for example, that the Pittsburgh Police cleared only 55% of homicides in 2021. The countywide homicide clearance rate was only marginally higher.

It is high time that the DA’s Office takes the lead in reshaping the criminal system’s landscape in Allegheny County. A “progressive” district attorney does not necessarily mean someone who refuses to prosecute entire classes of cases regardless of the evidence and/or constantly butts heads with the police. Rather, it means someone who knows that the key to meaningful prosecution lies not in the sheer volume of cases prosecuted, but in the importance and integrity of those cases that the DA’s Office decides to pursue. It means a DA’s Office that establishes best practices for police investigations and guidelines for the type of evidence that is necessary to both charge and prosecute certain crimes.

I am excited that Matt Dugan is running for district Attorney — not just because he’s my former boss, but because he understands the larger systemic issues that plague the criminal system.

He appreciates that DAs hold tremendous power as the gatekeepers of the system. He knows that by using that power to narrow the focus of the criminal system, the DA’s Office can better prosecute serious cases, require more thorough police investigations and refuse to prosecute unsupported charges.

To ensure the integrity of the criminal cases that are charged and prosecuted, the time is now for a changing of the guard at the Allegheny County District Attorney’s Office.

Daniel Eichinger is investigators/experts administrator for Wayne County, Mich.’s Indigent Defense Services Department. He formerly worked for the Allegheny County Office of the Public Defender, where he served as an appellate and trial attorney, trial manager, and deputy of the trial division.