Perhaps It's Time To Start Dismissing Criminal Cases


      We’re now four months into the pandemic, and, as near as I can tell, much about the world has changed. I say this tentatively because throughout this period, I’ve remained mostly at home, working remotely, and appearing in my office on rare occasions when I am sure not to run into anyone. My usual source of information, idle courthouse gossip, is inaccessible. In Connecticut, the courts are still effectively shuttered. There is no end in sight.

     That suits me well enough. After decades of nonstop action and daily court appearances, the break has been welcome. I sleep better. I’m physically fit. I speak complete sentences almost every day to my wife. Even my dog seems a little sick of me from time to time. (I didn’t think border collies ever tired, but there are days when mine decides she’d rather not endure another long walk with me.)

     Bottom line: Yes, the walls are closing in. But I’m holding my own.

     I cannot say the same for my clients. I am a trial lawyer. My clients depend on me to defend them in criminal (and rare civil) cases. When I do sue, I need open courts to advance my clients’ interests. Just now, my clients are wondering what will become of them and their interests.

     Candidly, I don’t have much to tell them.

     The federal courts at least issue periodic orders. Every couple of months, the presiding judge in Connecticut issues another order suspending everything, kicking justice’s can down the road another few months “in the interest of justice.” Clients waiting for criminal trials wait, and wait, and wait some more. There is no real end in sight.

     The state courts have adopted a sort of papal secrecy. You’d think the chief court administrators were the College of Cardinals, conducting important business behind close doors. What’s the long-term plan? Silence. When can we expect trials to resume? Silence. I’ve spoken to judges in recent weeks asking them what they are hearing. The answer? Nothing.

     We’re left with intermittent telephonic status conferences, the result of which is invariably kicking the can down the hallway, scheduling more dates to report back.

     I understood this and was patient when all was new and terrifying. We were unprepared psychologically for a pandemic. We didn’t have in place the infrastructure to do such work as could be done remotely. I get it all. I really do.

     I also understood the discussion about releasing prisoners early so as to reduce the risk of unnecessary death and suffering. I’ve always believed we imprison far too many people for far too long. Prison may be necessary but there is something obscene about our dark love affair with places of confinement. I see in today’s paper California’s plans to release some 18,000 inmates. My first thought? How many of those imprisonments really served any social utility in the first instance?

     Forget for the moment our transitory mass hysteria about “racial justice.” Throughout history, pandemics have been followed in short order by periods of panic. This is ours. Black lives have always mattered in this country, and the arc of our nation’s history has bent in the direction of justice for generations. A day of reckoning will surely come. It will arrive when the adults reawaken from their pandemic slumbers to call to account those who have transformed American public life and public places into the moral equivalent of a playpen filled with shrieking infants. We can’t cancel “cancel culture” quickly enough.

         If history is any guide, we’re not yet half-way through the pandemic’s period of infectious transmission. There will be more deaths. There will be more suffering. Our institutions and our way of life will be challenged, and strained.

         So here’s a modest proposal I have yet to see discussed: Let’s not just consider releasing those incarcerated. Let’s look at those facing charges right now. How many of these prosecutions are really necessary? Can’t a certain number of them simply be dropped?

The overwhelming number of cases in any criminal courthouse are minor offenses. What interest is served by maintaining lengthy dockets that can only grow? I’ve clients who are frantic with uncertainty about what is happening in their cases, and, therefore to them. Respect for the legal system is not promoted when they are told, over and over again by their lawyers: “Nothing. I don’t know when the courts will reopen. I can’t get anyone to do anything about your file. I’m sorry.”

         If we’re simply going to release people from prison early on humanitarian grounds, why send them there in the first place?

         I’m not in favor of anarchy. But I am tired of telling clients that the courts are closed, I haven’t any idea when they will reopen, and that they must put their lives on hold – indefinitely, while administrators dither in the face of an unprecedented public health emergency.

         It’s unlikely we’ll see jury trials for another year, in my view. Yet we’re still filling the pipeline with cases as though we were capable of resolving them. We’re not. Let’s stop pretending.

Comments: (1)

  • Open Courts is Constitutionally Mandated, No?
    Speedy trials are constitutionally mandated to prevent overlong sentences from being served prior to an acquittal or other means of dissolution of shaky cases. Case law has certainly entertained the issues of long suffering and distress resulting from long durations waiting trial, especially where pretrial confinements exceed the maximum incarcerative periods pursuant to the statutes alleged to have been violated in the first place. It has been said, long ago and far away, that if every criminal defendant incarcerated during pendency of criminal actions were to file for speedy trials, 90% would be released as a result. Shouldn’t we try that theory and see if the constitution holds up?
    Posted on July 16, 2020 at 4:21 pm by CapeCodCynic

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