Goliath very happy indeed to report that he got confirmation that at least ONE of the COURTHOUSE REFORMS proposed by Gawnews’ legal expert J.W. Hardin is about to be instituted at ye olde Clark County Courthouse. Word went forth from the Clark County Prosecutor Office that we were about to enter a new era of using ‘short form’ plea agreements.
As all and many may know, formerly, the felony cases in Clark County Circuit Courts 1,2 and 4 were all done by ‘Long form” plea agreements and these usually were about 20 pages of legalese left over from 1985. But now, Clark County will move into the 1990’s and beyond as we use the simple, straightforward and equally effective short forms as used in so many other counties.
Here is what the dishonorable J.W. had to say when we first addressed this issue:
C. ELIMINATE LONG FORM PLEA AGREEMENTS: You need to toss the long form plea agreement for 99 percent of the cases. The way it works now, the prosecutor and defense orally strike a deal. This is concluded by the defense saying “we’ll take it” Then, instead of writing up the short form PA (as is used in Floyd, Harrison and other counties) the process grinds to a halt as the Prosecutor now has to generate a long form plea agreement. This can take quite a while. It’s easy for the busy prosecutor to not get “right to it” . Even if he/she does…it has to go to a secretary. She has others she is working on or other tasks. So it gets ‘stacked’ in her pile. Finally she gets to the file….she can’t read the note. She does her best but something gets garbled. It goes to the defense lawyer. Now he/she has to send it back or mark it up. Get the client to sign it…that means a trip to the jail or getting the client into the office. TIME PASSING. Once signed, back to the prosecutor. Then it’s in a stack. Finally get to it review it. If nothing is wrong….sign and file. TIME PASSING. Now it goes to the judge’s office …stacked. Once the clerk gets to it is either assigned plea date or ….sent to the judge for review.TIME PASSING.
I believe the Long forms we are familiar with were an innovation in the late 1980’s in response to some cases that were attacked on PCR petitions for procedural failures. If you look at the long forms, they contain ALL the advisements the Courts now routinely give and THEN some. But, after those PCR cases were ended circa 1990 ALL the judges and prosecutor’s learned how to take an iron clad plea. So we are using the long forms to protect against a problem that no longer exists. In addition, the Courts are now using their OWN advisements and waiver forms that duplicate the warnings. FINALLY most of the judges ORALLY advise the defendants of their rights ANYWAY so what we have is a two-fold or three-fold duplication of warnings (actually fourfold considering your Defense Bar actually knows it’s job and has advised the client before signing the plea of what they are doing and giving up.) And why are we doing this Long form business? To ‘solve or prevent’ a problem we NO LONGER HAVE.”
See: COURT REFORM (published on Gaw news June, 2013)
In case you is not enmeshed in the intricacies of courthouse process, let Goliath assure you that this will speed up and make much more efficient the processing of felony cases. This is good news and we thank Jeremy Mull for taking Goliath’s excellent advice and going forth with this move.
Now, time to turn to the other BRILLIANT PROPOSALS!!!
Here are the other improvements that could be made:
A. ARRAIGNMENT COURT SESSION: Everyday, every court seems to conduct arraignments of whatever new cases have been filed in THAT court. This is duplicative. Now that ALL the Courts are Circuit Court (Just divisions of the one court) The day’s “haul” of newly caught alleged criminals could be brought up and arraigned. This could be done by a magistrate and the session could be a regular session, every day at 1. This would free the judges (and their courtrooms) up to do actual hearings and reviewing their motions and petitions and all that other cool judge stuff.
Once arraigned, other pretrial hearings would be conducted by the assigned judge. But really, ANYBODY can conduct an arraignment. This is duplicative waste of judge’s time. Plus, it also burdens the sheriff’s deputies that guard the prisoners. This way we don’t have guards in Four, Two and One all at the same time. (Well, at least not just for arraignments).
B. PLEA SESSIONS: Likewise, there is no reason not to have ONE plea session. I propose a daily plea session. All cases with plea agreements could be set for a plea docket AFTER the agreement was reviewed and approved by the judge. Of course, open pleas won’t work for this but there is no reason not to have ONE plea session for approved plea agreements. I also think, this is the sort of thing that could speed the process. For D felony and misdemeanors and other cases that don’t have executed sentence, (requiring a PSI) these could be set on very short notice. Put ‘em on the docket and plead ‘em out.
C. ELIMINATE LONG FORM PLEA AGREEMENTS: (see above)
E. ELIMINATE PRE-TRIAL CONFERENCES This may seem like the most radical suggestion of all. However, I would urge all parties to consider what the PTC has evolved into. Back in the day, the PTC was a useful event. Both sides met struck a deal the client signed off and we get a sentencing date. That was how it worked then and its why we do them today. But, guess what…everybody….IT AIN’T WORKING. First off, the PTC as it is in effect in 1,2 and 4 is usually a waste of time. The PTC are set on a certain day and the cases are stacked. The lawyers are backed up waiting in the prosecutor’s office ALL MORNING. This wait can be, literally 3 hours long at times. A huge waste of the defense lawyers time an the client’s money. Of course, the prosecutor doesn’t have this particular problem, but they do have the problem of ‘slam dealing’ maybe dozens of cases in a morning. Forgive me, but how can you do an individual case ‘justice’? Meanwhile for cases in 1 and 4, even if you get to some kind of an agreement in principle, the prosecutor USUALLY has to (under the law) check the deal with the victims. (And that is a whole different story) In any case, as currently structured the PTC is usually or often as not un-productive.
I also note that the IRCP and statutes do not require PTC. This is something courts came up with to help move the cases. I believe that most serious deals get cut while the lawyers are doing other business, or in meetings arranged outside the Court’s schedule. ..by phone call or email. Competent Defense attorneys are going to do what it takes to get their deals made and do not need the PTC to make them have that incentive. The most important date is the DEADLINE for filing an agreement or Motion to Continue the trial. That’s when the deals get made. So, I propose we keep those deadlines and EMPHASIZE them and dump the PTC. As an alternative, maybe use the OMNIBUS date for this ‘official negotiation’ session.
F. VICTIM NOTIFICATION: The police need to begin gathering the alleged victim’s email or other electronic contact information as well as a phone number. That info should be used by the State to notify the victim of A. proposed plea agreements B. Sentencing or hearing dates. Of course, there will be some fraction of victims who do not have this. But, in 2013 the large majority will. This would be a public service and assist in compliance with the State’s obligations to represent the victims. They surely should be informed of court dates that are important to them as well as the defendant.
G. TIGHTEN PD ASSIGNMENTS We all respect the right to counsel. But it is a stone fact that a portion of criminal defendants do not qualify and yet are assigned a PD. I believe that in all cases in which the defendant has made bond, and ALL D felony cases and misdemeanors, the defendant should have to specifically request a PD and come to Court and show his or her indigency. IF a defendant posts a $2,500 bond or more (for C felonys and up) an already has a PD there should be an immediate review of whether that person qualifies for a PD. (1000 dollars for D felonies and $500 for misdemeanors).
In addition, the Clark County Bar Assoc. OR the PD office should maintain a list of attorneys who are willing to take ‘discounted cases’. (I hope I don’t need to explain that).
H. UNIFORM POLICY FOR PROBATION AND HIP AND WORK RELEASE REVOCATIONS I do not think there can be a ‘perfect’ solution or policy. But their should be at least a general policy established that is uniform so that whether or not a petition to revoke is filed is not dependent on WHICH PO a defendant has. This should not be dependent on the individual PO, nor the individual Prosecutor, but it should be on the JUDGES and their policy should be uniform.