SUGGESTED CHANGES IN CRIMINAL COURT

 Having come through the pandemic and emerged on the other side, vaccinated, rested, and ready to try some cases, we naturally have some thoughts on the lessons of the last year and a half. 

SOUNDINGS: The judicial system of the United States did not collapse, justice was not subverted, the court was not disparaged simply because a defendant did not appear in court for a sounding. The system survived and to paraphrase Dan Akroyd in Ghostbusters all life as we know it did not suddenly end with every molecule in our bodies exploding at the speed of light because a client was not at a sounding. In other words, defendants should not have to appear at every sounding. Now there are reasons judges want defendants in court. They want the defendant to hear the offer, and many cases close at soundings. But there should be a middle ground.

 As we have seen with the closure of the court houses, there are sound benefits for allowing people to not attend every court hearing. Less cars on the road; less congestion in the REGJB (a/k/a social distancing- how would you like to go through the next few years without getting a cold or the flu?); more efficient use of time. 

PRE-TRIAL INCARCERATION: Once again the world did not end and there was not an unprecedented spike in crime when the jail population was reduced. We worked pro bono on several cases (all non-violent) where defendants were released- some over the strenuous objections of the prosecution. No one we know of has fled to North Korea, all the people we assisted in getting released have been appearing for every zoom hearing. Life went on and society did not collapse. As our colleague David Markus continues to remind judges and the media in the Maxwell case, pre-trial detention is a serious determination that should not be made lightly. Multiple forms of release are available and should be used. Lower the jail population. The days of "lock-em-up-and-throw-away-the-key" need to end. And that starts with prosecutors.  

SENTENCES AND GUIDELINES: In federal court we saw judges who were often downright eager to release defendants they had sentenced to prison for decades because of the guidelines. In many cases, defendants who entered prisons at 20, were vastly different people at ages 40 and 50 and our federal judges recognized that and ordered compassionate release. Perhaps our favourite order was issued by Judge Middlebrooks. Having sentenced a defendant to something like 5 or 6 or 7 years in prison for a fraud case, the man had significant health issues and was designated for a prison in California that had a large outbreak of Covid. In response to a motion, Middlebrooks initially asked the BOP to fashion a remedy of allowing the defendant to remain on home confinement until the situation stabilized. When the BOP thumbed their nose at the Judge, he responded with an order that stated in part "I sentenced the defendant to prison, not to death..." and vacated his sentence and ordered home confinement. The Judge recognized what is all too often ignored- prison is an awful place in which many defendants do not survive. Not everyone charged with  crime needs to go to prison and if prison is called for, a long sentence is rarely justice. We will have more to say about this another time looking at the sentences of former federal Judge John Gleeson and Judge Ned Rakoff in the SDNY. 

LESS TRIALS NOT MORE TRIALS: Although we heartily agree with Mr. Markus that "you cannot win a plea" less trials in less serious state cases may not be a bad thing.  Most cases are over-charged by the prosecution. They go to trial and the PDS end up with an acquittal or a simple battery on a crime charged as attempted second degree murder. True story- we once defended a professional man charged with aggravated battery with the use of a plastic dustbin. A neighbor thumped another neighbor with a plastic dustbin, and then hit him with a piece of watermelon for good measure. The case should have never been in felony court.  The great Richard Sharpstein once defended a newly married man, whose wife tasked him with returning a wedding gift. In the bridal registry of Burdines, he was confused and charged with grand theft. In the brilliant words of Sharpstein in closing argument-  "he was a stranger in a strange land." Not Guilty. 

Kathy Rundle and Don Horn need to stop the practice of their office (not always, but frequently) overcharging cases. They need to review those cases where the PDs get lessers or acquittals- which every judge will tell you happens frequently- for evidence of the systemic problems their office has. Less trials on these cases leaves more time for trials on the serious felonies. 

And finally, Zoom should be here to stay. We know it's not easy. We know some judges do not like it. Those same judges probably did not like it when their offices went from typewriters to word processors to computers. 

Change comes in waves. It is not gradual, and it is usually met with resistance and reasons why it will not work.   Computers won't work. Too complicated. No one needs a camera in a phone. Electric cars won't work- no way to charge them when you're on a road trip. Cryptocurrency is a scam. Don't buy that bitcoin for $100. You will lose your money. TV will never replace radio. No one will pay for cable TV.  You cannot build buildings over five stories. Too dangerous. Planes are too dangerous. It will never replace train travel. Cars are too expensive and unreliable. We are a society that travels by horse. People cannot rule themselves- democracy is an idea that cannot work. 

Judge Sayfie's biggest challenge, after getting all of the court divisions open (even probate, once someone determines where the probate judges sit), is the integration of new technology into a creaking and old court system resistant to change. 

Perhaps our greatest danger and challenge is not the new variants of COVID, but acceptance of the new variants of technology that can change the way we work and live. 

Have a great Fourth of July weekend.