The Schizophrenic State
I sometimes have trouble explaining to clients that there really is no such thing as the State of Connecticut. The concept is an abstract noun, a legal fiction. The state is something akin to a necessary placekeeper in a vast equation. Like God, it is ever present and always absent.
But it feels different when you are standing in the well of a courtroom and a judge intones state versus you. All at once, this fiction acquires power. Clients then begin to wonder: If the state is prosecuting, does that mean the the prosecution is working hand in glove with the Department of Children and Families, the tax man, the Department of Motor Vehicles, the entire administrative apparatus of all things bearing the state's seal? After all, if the state exists, doesn’t it form intentions, have plans and otherwise coordinate its activities?
In fact, the answer is no. If the state has a personality, it is diseased. The state is a schizophrenic. Not only does the right hand not know what the left is doing. It is far worse. The state doesn’t even know how many hands it has. It is a cacaphonous beast, the stuff of myth or legend. Its no wonder we fear it.
This is nowhere so evident as in our courts, where the state struts, huffs and puffs in pursuit of something called justice. The state prosecutes crime, saying it seeks justice. And justice, we sometimes rhaphsodize, is eternal. Make that eternally scattered.
Consider the following: In the criminal courts, cases that are not resolved by way of a plea are typically placed on something called the “trial list.” Presiding judges in the various judicial districts throughout the state anxiously fondle their lists. Moving cases, closing them out by verdict or plea, that’s justice for the men and women monitoring the assembly line. So lawyers and clients are told they are on one-hour and two-hour notice. Cases can be called to trial at any time, except that they aren’t. Most cases molder on trial lists and go to seed several times over before trial every takes place.
It sometimes happen that one lawyer’s cases are called in to trial at the same time in different places. This is state schizophrenia at its best. Two presiding judges demand a lawyer’s presence. There is no centralized planning system, no coordination, not even much communication between courthouses on the matter of scheduling. When two judges want the same lawyer at the same time, something has to give. The presiding judges square off like gunslingers, posturing to see who has the biggest gavel.
I am caught between two judges right now, and my clients may well suffer. I am ordered to appear in one court soon for a manslaughter trial. I asked for a date certain long ago so that I would have time to prepare a difficult case. We try a lot of cases in my office. I can’t do business on a two-hour notice basis. I’ve got trials booked well into the spring of next year.
But that did not matter to another presiding judge. I am ordered to appear in a child sex case. The schedule of the child sex case conflicts with the manslaugher case. I alerted the second judge to my scheduling conflict, but the order to appear still entered.
Both judges have conferred and tried to iron out the obvious problem here: I cannot be in two places at once. But neither judge appears content with when I can be available. Discussions appear to have broken down. So I am now soon ordered to be in two places at once by the schizophrenic principalities in the judicial branch. Didn’t Dickens say that law was an ass?
So which trial do I prepare for? How do I explain this to clients? How is respect for a judiciary that cannot coordinate a statewide docket fostered amid this mess? It would not be hard to come up with a master plan to govern such conflicts were the state a well-ordered personality. But we know the state is a legal fiction. It acts through individuals with interests all their own. Sometimes those interests have little to do with justice. Sometimes the state is simply schizophrenic.
Reprinted courtesy of the Connecticut Law Tribune.