Each year, as predictable as the change of seasons, a few clients charged with crimes fire me: they believe I am doing nothing for them. They are replaced by new clients who have fired their lawyers: they believe the prior lawyers were doing nothing too. The cause of all this is the snail’s pace at which cases move in Connecticut. We have no commitment to speedy trials. Clients don’t believe it, so they change lawyers, anything to create the illusion that their cases are not being ignored.
But the sad fact is that nine-tenths of what goes on in the criminal courts of this state is mere window-dressing for inevitable delay. The courts can’t cope with all the cases the state brings. So rather than giving judges the power to move cases, we treat the accused like cans of peaches, shelving them and dusting them every couple of weeks with the hope that someday, somehow, they will be sold.
Once upon a time, cases went to trial promptly. Delays of more than a year were not common. We didn’t pretend that a person who was presumed innocent was anything other than a prisoner if he could not make bond. We did not pretend that being forced to wait eight long months before you could claim a speedy trial was just. Neither did we pretend that those released on bond, or on a promise to appear, should have to wait one year before they could demand their day in court. Today delay is common.
Few are served by delay. Yes, the criminal defense bar takes it as dicta that delay favors the defense: witnesses can disappear, evidence can get lost, memories can fade. Delay can be a litigation tool for defendants. But it is not supposed to be.
Now even prosecutors use delay. Thanks to the so-called victims’ rights amendment to the state constitution, many prosecutors are running scared from the rage of complaining witnesses. (Just why we call folks victims before there has been a finding of guilt and give them the right to be heard throughout a criminal prosecution is a telling sign of just how far we are from honoring the presumption of innocence. Absent guilt, there are no victims: there are only complaining witnesses.) I often hear a prosecutor request a continuance simply to give the complaining witness a chance to calm down. It is hoped a better plea deal can then be reached. The right to be heard is too often the right to hold the criminal justice system hostage. Ask Dr. William Petit how that works. Someday he will put us out of his misery.
A criminal accusation is most often a catastrophe for the accused. The state alleges a violation of the law. The accused is charged, and his or her good name destroyed. Then the case goes into the so-called pre-trial process, an often endless and frequently meaningless set of discussions intended to arrive at a plea bargain. Judges fuss and fume about so-called "accept or reject" dates: "Take today’s deal or tomorrow’s conviction, should it come, will be far worse. You’ll never see another deal as good as this." Clients who insist upon exercising their rights then face a trial tax, a special added wallop at sentencing to serve as a message to other defendants: "Take what we offer and don’t raise a fuss. Did you see what happened to the last guy who went to trial?"
There would not be delay if the criminal justice system forced prosecutors to use their discretion wisely. But we coddle the prosecuting class. Lawmakers define crimes and then deprive judges of the power to substitute charges when the state overcharges a defendant. Questions of cost rarely seem to enter into the calculus about whether and how to prosecute. The state behaves as though it lived in a fantasy land, spending money we don’t have.
This is a time of austerity. Governor Dannel Malloy has sent layoff notices statewide. Prisons will be closed. There simply isn’t enough money to go around. We have to make tough choices about priorities.
Prosecutors afraid of complaining witnesses most often won’t make these choices without a little help. So lawmakers should assist. Change state law regarding speedy trials. Require the state to bring a case to trial within four months. If, for any reason, the state cannot do so, then either require that case be dismissed, or, if it is not to be dismissed, give to a judge the power to substitute charges with lesser included offenses upon a finding that the interests of justice are so served.
There will be a lot of moaning about this from state’s attorneys statewide. They love the power to charge, and to do so without any meaningful review. But can we really afford this luxury any longer? Isn’t it long past the time to make speedy trials for the accused a reality in Connecticut?
Reprinted courtesy of the Connecticut Law Tribune.