Delay and Its Inevitable Costs
Delay is often the best friend of a criminal defense lawyer: witnesses move away, their recollections fail, the state loses evidence. Things really do go bump in the night. Criminal cases, unlike wine, rarely get better with age. So I should be in favor of delay, right?
As a tactical matter, yes. But no two cases are alike. There are cases in which delay is harmful, and wasteful, both of the time of lawyers and of the finances of clients. Indeed, delay between arrest and trial often creates friction between lawyer and client.
In Connecticut, it is not uncommon for years – as in two or more – to pass between an arrest and trial. The state’s idea of a speedy trial is one commenced one year after the arrest for a person released on bond; an incarcerated defendant must wait eight months before claiming his right to a speedy trial. We have cases in my office that are years old awaiting trial. In most cases, the clients are content simply to wait. There is an uncanny type of hope in delay.
My office receives several calls a month from potential clients who explain that their lawyer is not doing enough with their case. When I talk with these folks it is almost always the case that I recommend staying with the lawyer about whom the client is complaining. The lawyer is simply waiting for the case to reach a docket. Sometimes there is nothing to do but wait, hard as that may be for clients looking for closure.
Connecticut has a grotesque practice of not resolving motions to suppress evidence, or evidentiary motions – called motions in limine, or at the threshold – until the time of trial. Hence, the thousand and one questions that bedevil a trial lawyer, and torture his client, can go unanswered for years: How will the court rule on whether a given witness can testify? Will evidence of prior misconduct be admitted? Who will testify for the state? These questions can go unanswered for years.
The questions press with a particular urgency in child sex cases.
Almost invariably, these cases arise on the mere allegation of a child. The accused meets the allegation with a denial. The challenge then becomes determining why a child would fabricate an allegation of abuse. Studying the family of a child claiming to have been abused confirms Tolstoy’s observation in Anna Karenina: "Happy families are all alike; every unhappy family is unhappy in its own way." Yet in these cases, a nexus, or a connection, must be drawn between the child’s testimony and the familial discord. Trial judges are reluctant to permit this evidence to be presented to a jury, and often reserve these decisions until trial, ruling as the case evolves.
A man accused of abusing a child cannot hear about inevitable delay. He knows fear, and anger, and the helpless anxiety caused by delay. Time weights heavily on the accused. Every day is a lonely struggle to make sense of an accusation striking like lethal lightning from nowhere. Sometimes these clients want answers months, even years, before trial. "What is our strategy? How will you question this witness, and that witness? Will the judge permit evidence of familial discord?"
These are all intelligent questions, but they are not questions that can be answered in a vacuum. The grand strategy of a criminal defense is to create reasonable doubt; all else is a matter of tactics. The lawyer must have his arrows ready in his quiver, arrows that can be selected in a moment’s notice and fired with lethal effect. But which arrow and when is a decision most often made when toe to toe with a witness. Noodling endless possibilities and contingencies in meetings with a client and the client’s family is rarely effective trial preparation, however effective it may be as a means of engaging the client in a task that discharges his anxiety.
Some clients demand this level of involvement in their case. But those clients rarely have the means to pay for it. Few trial lawyers in small firms charge hourly fees – clients cannot afford them, and the cost of trial, when calculated hourly, is hideous. Indeed, every criminal defense lawyer I know will concede, privately, that their firms lose money at trial.
Hence, the problem with delay between arrest and trial: To the client, all depends on the outcome of a day it is in his interest to delay for as long as possible in almost every case. Yet this client expects his lawyer to shoulder the weight of the case daily. Few clients feel comfortable admitting that there are times when their lawyer is not thinking about their case at all because the lawyer is trying someone else’s case.
The lawyer, on the other hand, wants to serve his client, and keep him reasonably informed of what is going on. The client has necessary information and the lawyer must provide a basic education on the law’s way of resolving life-defining events. Yet the lawyer has a firm to operate, other clients, bills to pay. A client who demands what the client cannot afford to pay for places both client and lawyer on a collision course with disaster.
So clients leave perfectly good lawyers because the lawyers aren’t doing enough during the great doldrums when there is nothing much to do. At least the new lawyer is doing something, even if all that is being done is acquiring yet again a basic familiarity with the facts of the case. Funds are wasted in such hand-offs, but, I suppose, the illusion of meaningful activity is nourished.
In general, the world would be a better place if cases moved quickly from arrest to trial. Justice delayed can be justice denied. And clients, for whom all depends on the outcome, are tortured by delay; they sometimes insist on torturing their lawyers as well.
Of course, in Connecticut, the long delay between arrest and trial is a result of the wasteful manner in which we pick jurors. By questioning each and every potential juror outside the presence of all others, we guarantee that no case comes to trial promptly. I suspect it takes us longer to bring a case to trial than anywhere else in the nation.