Delay, Delay, Delay
Among the many rules of thumb a criminal defense lawyer consults in the day-to-day practice of law is the following: Delay always favors the defense. If that rule of thumb is in fact true, then Connecticut criminal defense lawyers ought to thank the heavens each morning. The criminal courts in this state move, when they move at all, at a snail’s pace.
I was reminded of this thrice yesterday.
On one side of the state, I appeared bright and early with my client and his parents. They had flown to Connecticut from the West coast to attend a brief, but highly significant, hearing. I was the first lawyer admitted to the courthouse. I wanted to talk to the prosecution and provide her with material to review before we appeared before a judge.
The state’s attorney’s office seemed puzzled. I was sent to the clerk’s office where I was informed that our hearing had been cancelled back in April. They tried to call us to tell us so, but we did not call back, I was told.
I asked to see the file with the notes reflecting this. In fact, we filed a motion on April 15, 2011, asking for a hearing. We were called on April 20, 2011, and told we needed to file additional paperwork. We explained to the clerk she was wrong. We received a call back and were told we were right. The hearing was set for May 12, 2011. But my client’s father was unavailable that day, so the hearing was set for yesterday. All this took place well after April 20. There was no call to my office cancelling the hearing. And neither was there an apology from the court for the wasted airfare and time my client and his family spent yesterday when we turned away, without even a new date.
I tried to explain to the disappointed family that this is how deck chairs get shuffled on the good ship Titanic. My client’s mother was incredulous.
As I drove to another court from this disaster, my office called: Another hearing long-scheduled set for Thursday was cancelled, without explanation and no new date given. Try explaining that to a client who is facing jail time and wants simply to get on with their life.
Meanwhile, on the other side of the state, an associate of mine went to a pre-trial in another case, this one seven months old. Our client complained on the record that his case was going nowhere. We had filed no motions. Nothing was happening.
He is correct, sort of. Although he has been arrested and charged with a serious crime and we have been to court almost half a dozen times on his behalf, I have yet to have a meaningful discussion with the prosecutor who will be handling the file. Indeed, for months it was unclear which office of the state’s attorney would be prosecuting. Often enough, I’ve come to court and no one handling the file was present. We’ve come to court prepared to work. The state just isn’t ready. So why are we driving more thant three hours round-trip for each meaningless court appearance?
Under Connecticut law, pre-trial motions are to be filed promptly after the final pre-trial, when the issues have been framed in negotiations supervised by a judge. The client is upset by the reality that in his case, little has happened. It isn’t for any lack of appearing in court. The state is not obliged to act until a man or woman is eligible for a speedy trial, that is, after they’ve spent eight months behind bars counting the passing days.
I marvel at states in which criminal cases are brought to trial promptly. I chalk up a good deal of the delay we accept as the norm here to our practice of interviewing each and every potential juror outside the presence of all other potential jurors. It is often the case that it takes longer to pick a jury than it does to put on evidence in a case.
So yesterday much though my office tried to work in the halls of justice, we really just wasted more time. Our clients are upset. Unnecessary tensions have been created because delay and inefficiency is the norm. I wish judges had to explain this to clients one-on-one, behind closed doors, without the protection of marshals or the pomp and circumstance of the courtroom.
Delay may serve the interest of a defendant in the long run: witnesses may move away or forget, evidence may get lost, the mere passage of time may case a patina of unreliability on the obvious. But delay strains the relationship between lawyer and client, in some cases to the breaking point. It is a sad, but inevitable truth, another that criminal defense lawyers accept as the cost of doing business in a state with a court system that moves at a glacial pace, when it moves at all.