Court reforms: Review

Over 2 year ago,  J.W. Hardin proposed court reforms that would streamline the Clark County Courts and make them more efficient and improve the dispensation of Justice.

Let’s take a look at what was proposed back in June of 2013 and see how that’s going.

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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).

2015:  This is not being done.  However, the Sheriff recognizes this problem. His proposal has been to try and have ‘video’ arraignments.  So far, thankfully, the Judges have refused this ‘solution’.  Video arraignents are not a reasonable solution.  No criticism intended of the Sheriff’s department, but video or closed circuit tv arraignments provide the rock bottom bare minimum of what is required. There is value …real value in the defendant being face to face with the judge and the prosecutor. Family’s can attend and often important issues are sorted out.  We once again recommend consideration of the GAW news proposal.

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.

2015:  This is not being done. However, the Courts are doing an excellent job (generally) in moving the pleas through.

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.

2015:  This is being done. We now have shortforms that prosecutor’s fill out when the deal is struck.  Every one is happier. Thank you Jeremy Mull.

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).

2015:   This is sort of,  sometimes, being done. But not really.  It is catch as catch can. Certainly no one has visited Floyd County and availed themselves of the vastly superior process. Too bad.

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.

2015:  Not only is this not been done, things are WORSE THAN EVER.   Now Juvenile PTC are done in the Prosecutor’s office.  There was even talk of moving Circuit 3 to the Prosecutor’s office. Meanwhile, the waiting area has been walled up,  a new policy with a locked door to access the offices and more people mobbed up in the hallway.  Disaster. 

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.

2015:  Not being done.  Sad really.  Sorry victims.

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).

2015:  It does seem that the Courts have tightened up somewhat.  Still a problem however and no list of alternate private attorneys is available.

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.

2015: There are changes.  It’s not clear to this writer what the policy is.  The prosecutors have now taken a position of  seeking executed full sentences of probation. Of course, that experiment is still underway but JW Hardin predicts it will evolve to some other model. 

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