(Gawnews originally posted this horrible idea of reforms back in June 2013 …back when all was swell in the Courthouse)
Goliath has asked his esteemed counselor, the late J.W. Hardin, attorney at law to review the Clark County Court system. J.W. has the advantage of watching court process for over a hundred years. (Some of that time he was actually a defendant) before he went to prison and became a lawyer down there in El Paso) Anyway, As Goliath is always public service minded, he asked J.W. to take a look and see if any improvements could be made in the Clark County system. Here what he came up with:
Greetings, this is J.W. Hardin, Esq. (Deceased) and as Goliath noted he asked me to take a look. The Clark County justice system got some good things going for it. First of all, you have some good judges, lawyers and staff working in there. That’s about ninety percent of good justice. But I did note some things that need improving:
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: 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.
D. ELECTRONIC DISCOVERY: In the year 2013, this is almost embarassing. J.W. Hardin respectfully and humbley suggests the Clark County Prosecutor send a representative to New Albany to see how Floyd County is sending Discovery via Email. This A. Saves Paper B. Saves Time C. Ends disputes on whether the lawyer GOT the discovery (electronic trail) D. Saves money (no copy costs)
I know, I know, it hard to believe that ANYTHING good ever came out of that despicable FLOYD COUNTY, but, in this case…they actually are AN ERA ahead of Clark. When a Clark County lawyer attends a conference with a Floyd County prosecutor and the topic of discovery arises, the Floyd County deputy prosecutor says, “what’s your email” and within about 45 seconds….the defense lawyer has it. It’s a good system it almost always works. Cool. Plus, the Floyd county prosecutor can pull up his ‘file’ and click right on the document he needs. It’s awesome. No digging through the file for the right file…and ITS ALWAYS THERE. Even if you had it out in your office looking at it , it doesn’t ’get lost’.
When some no good defense lawyer gets in front of the judge and says “We didn’t get that your honor” The State can say…Hmmm I sent you that on June 1, 2013 unless you changed your email account. (Defense lawyers need to make sure, however, they clear their spam filters sometimes if they don’t get the email when sent).
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.
UPDATE: The Drug Court should be supervised to follow the State Handbook on procedure and policy.