Apr
20

When the Process Becomes the Punishment

The process, criminal defense lawyers like to say, is the punishment. Nowhere is this so true as in the low-level criminal courts in Connecticut, known among the cognoscenti as the “GAs,” or Geographical Areas. All criminal cases make their courtside debut in the GA courts. Only the most serious are transferred to what some folks refer to, with a sense of drama, as “high court;” lawyers know these courts simply as JDs, short for Judicial Districts.

Connecticut is divided into 13 Judicial Districts and 20 Geographical Areas. Despite that, New Haven’s GA court is called GA 23, as there are no GAs six, eight or 16. Who is number one? Stamford, of course, but you knew that, didn’t you? Torrington doesn’t have a GA; its cases report to GA 18 in Bantam. Meriden’s court is denominated GA 7.

The overwhelming majority of cases remain in the GA courts. It’s where defendants first appear in court to be arraigned, a brief hearing at which a judge reviews the facts and circumstances supporting an arrest to determine whether there is sufficient reason for a case to go forward.

It is perhaps poetic overstatement to say that GA criminal cases “go forward.” A better description would be to stutter-step, to lurch, to pirouette forever circling a destination just beyond sight. The GA courts are a sticky mess.

A sticky mess, that is, unless you plead guilty. Most defendants do, and they do so promptly. Prosecutors are quick to make deals in low-level cases, and a variety of programs exist for the express purposes of moving folks off the criminal docket and into some sort of treatment or probation. Moving files is the work of the GA courts.

But if you decide to contest the state’s allegations against you in the GA courts, you enter a world in which time stands still. Plead not guilty and demand a jury trial and you have, in effect, declared war on the settled conventions of the GA sausage shop. The system strikes back, demanding endless biweekly court appearances until a judge finally puts your case on the “trial list,” where you might linger for a year or more until you are called, out of the blue, and told to report to court on short notice to begin jury selection. This interminable waiting, the pointless court appearances, this is the process that punishes.

As a younger man, I vowed to age gracefully and to never look back with nostalgic appreciation of days gone by. I didn’t want to be one of those gray-haired wonders who told a new generation how things were done back in the golden days. I surprised myself by just how badly I had broken that vow when consoling a young lawyer the other day.

“I was in the GA until after lunch,” she fumed. It was one of many trips she’d made to one of the state’s larger cities on behalf of a client.

“What took so long?” I asked.

She could give me no good answer. The state had offered her client a chance to plead guilty to an infraction more than a year ago, an offense that does not even rise to the level of a crime, in this case “creating a public infraction.” He’d be required to pay a $35 fine. (Crimes are either felonies, carrying a potential penalty of at least one year in prison, up to and including death, or misdemeanors carrying up to one year in prison. Infractions are mere fines, carrying no risk of incarceration.)

Her client insisted that the police were wrong to arrest him, and that he had broken no law whatsoever. He wanted a trial. As was his right, he demanded a trial. His lawyer requested that his case be put on the trial list, but the presiding judge refused, requiring him to come to court month after month after month to sit in the courtroom waiting first for the judge to take the bench, then for his case to be called. Some days, his case was not called until late morning or early afternoon. His lawyer was required to appear with him at each appearance. If the client failed to show up, he could be arrested for failure to appear, a felony. The man presumed innocent was on a long leash.

The court’s refusal simply to put the case on the trial list but instead to insist that the man return to court over and over and over again has a name: it’s called passive aggression. For demanding his right to trial, for insisting that the presumption of innocence was more than mere verbiage, the man was being punished by being required to appear in court over and over again, there simply to sit until the judge got around to calling his case. This short of shenanigans makes my blood boil.

“I recall the old days,” I said to the young lawyer, breaking my vow to age without nostalgia. “Back in the day, you could be in and out of a GA court inside an hour. I used to cover courts in three cities before noon.”

She looked stunned.

“A trip to the GA now almost always takes the better part of a day,” she said.

I hear that from lawyers all over the state. It’s almost as if the court system has decided to place informal and costly barriers in the path of those who demand a trial by jury. It is related to the “trial tax,” the surcharge in punishment imposed on those who go to trial and lose.

The fact is that most GA courts lack the resources to try cases efficiently. There may be one judge equipped to try cases in a courthouse with thousands of pending files. Informal barriers to those who seek trial in the form of lengthy and costly delays are one way to thin the herd of those seeking trial.

Chief Justice Chase Rogers cares deeply about the public perception of the courts. She ought to turn her attention to the GA courts and the widely held perception that judges resort to juvenile passive-aggression in an effort to punish those who demand a trial by jury. The Constitution says nothing about the process itself becoming the punishment.

 

Related topics: Journal Register Columns
Comments (1)
Posted on April 23, 2014 at 4:25 pm by Anon
Same Stuff in Texas
I also see the same type of shenanigans going on in Harris County Texas misdemeanor courts and lower. The docket is chock full of nonsense. To make matters worse some prosecutors go out of their way to make sure you spend your day spinning your wheels. This type of gamesmanship will only be met by a more aggressive defense bar. I don't understand why the Defendant even has to show up on a non-trial day. Most of the pre-trial stuff could be done over email anyway, and keep the courts open for actual motion practice and trials instead of doing multiple inane docket calls.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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