Justice Process Snack bar justice Local legal culture

Justice Process Snack bar justice Local legal culture 13 -step process

Justice Process 1. Legislative Process 2. Field Investigation 3. Police Station Process 4. Complaint Authorization 5. Initial Appearance 6. Preliminary Hearing 7. Arraignment 8. Misc. Pretrial Hearings, Motions and Strategies 9. The Trial 10. Sentencing 11. Post Sentencing/Appellate Phase 12. Corrections 13. Cleansing

Step 1 – Legislative Process Declare certain acts illegal Establish penalties Substantively create the justice system Establish the process/the legal procedures Outline the legal rights Finance the system

Step 2 - Field Investigation Non interventionist strategy (wiretapping, observation, interviews) Interventionist strategy A. Informal (temporarily detain, stop and frisk, street informant) B. Formal (arrest, cite, search and seize, indict, informant/immunity)

Common Short-Circuit Options Cite and release Street arrest, release and stable To get through all 13 steps, we must assume the worst. Few cases go through all the steps. Most are short-circuited out somewhere along the way.

Step 3 - Police Station Process Booking Interrogation Line up identification Mugging Inventory of belongings Station house bail Defendant may contact an attorney Police administration decision to go forward (probable cause needed) › › › null or drop the case put the accused into the stable probable cause v beyond reasonable doubt dynamics 2/3 of cases go forward operational dynamics

Step 4 - Complaint Authorization Authorized by a prosecutor Probable cause is needed 43% not authorized or dismissed later, why: › Probable cause v. Beyond reasonable doubt (de jure v. de facto dynamics) › Is there solid, presentable evidence › Are there believable/creditable witnesses › Cost factors (time and money) › Political pressures

100 Felony Complaints Sought Complaint not filed or dismissed later 43 57 left Reduced to Misd. and pled out 43 14 left Plea to a felony 11 3 left Felony trial – . 75 acquitted 2. 25 convicted 3

100 Felony Complaints Sought Out of 100 felony cases brought to the prosecutor’s attention by the police seeking a complaint, there will be 43 misdemeanor convictions and 13 felony convictions for a total of 56 convictions (54 via plea bargain and 2 via a trial).

Checks and Balances Ours is a system with checks and balances. Note, to move this case forward so far: 1. Street cops say there is probable cause 2. Police administration says there is probable cause 3. Prosecutor says there is probable cause 4. As the case moves on, a Judge and possibly a jury will also be independently reviewing evidence in a checks and balances context

Step 5 - Initial Appearance Minor Trial Court Without unnecessary delay Habeas Corpus right Court procedures: 1. Charges are formally levied by the prosecutor with the court 2. Charges and potential penalties are communicated by the court to the defendant 3. Rights are communicated and fulfilled 4. A plea is entered 5. A decision is made as to the next step 6. Bail is considered

Misdemeanor Case Guilty Not Guilty Sentenced Sentencing Trial Date Bail?

Felony Case Guilty Not Guilty Sentenced Sentencing Preliminary Hearing Date No Yes Bail? Trial Date Preliminary Hearing Bail? Date Bail?

Pre-trial release/Bail Amount of bail varies with the severity of the offense and the characteristics of the accused. Different pre-trial release/bail options: a. Bond yourself out b. Bail Bond agent c. 10 percent system d. ROR/PTR bond Defendant retains a criminal liability; bail just a release pending future court proceedings.

Bail: Legal Issues We do not have a right to bail, but the 8 th amendment gives us the right against excessive bail Stack v. Boyle (fail to appear test) - Bail may be denied if there is probable cause to believe that defendants will fail to appear at future judicial proceedings. U. S. v. Salerno (dangerousness test) - Bail may be denied if there is clear and convincing evidence that defendant are dangerous and pose a threat to the community at large and the court participants in particular. Taylor v. Taintor - Bail bond agents may use physical force to capture their bondees who have skipped bail, as long as the force used is reasonably related to the custody and/or transportation of the bondees.

Pre-trial release/Bail If the accused appears at all hearings, all money/assets deposited with the court as part of the release agreement are returned minus an administrative fee (even if found guilty) Money paid to the bail bond agent is not returned; private business deal If the accused fails to appear, money left with the court is forfeited, the accused is liable for any additional funds due as outlined in the release agreement (10% system, ROR/PTR), and a felony bench warrant is issued.

Pre-trial release/Bail is not forfeited very often in FTA cases. If it was, bail bond agents would have to charge more because they are taking on more risk. This would result in fewer being released on bail, which would result in the jail population increasing, which would be more expensive for the county. When bail is forfeited due to an FTA, it is usually for some other over-riding reason. Bail bond agents often hire bounty hunters or skip tracers to locate and return their FTA bondees. No warrants or extradition papers are needed, and the court has established a low-bar when it comes to the use of force to return FTA bondees (see Taylor v. Tainter, 1873).

Step 6 - Preliminary Hearing Mini-trial Minor Trial Court No jurors State presents evidence/defense cannot 1. Shred 2. Shotgun Probable cause the standard Judge issues a bind over/case is bound over for trial, or the case is dismissed

Potential Preliminary Hearing Outcomes Case is bound over for trial Judge dismissed the case for lack of evidence: 1. Individuals are free (subject to the statute of limitations) 2. Prosecutor may file new charges 3. Prosecutor may re-authorize the same complaint (not double jeopardy) 4. Prosecutor may file a writ of information 5. Prosecutor may turn evidence over to a grand jury

Grand Jury 12 to 23 randomly selected citizens Meet in secret Prosecution or Grand Jury appointed prosecutor presents the case Witnesses testify and evidence is presented Witnesses and evidence can be subpoena Witnesses testify and can be compelled to testify Neither defendant nor defendant council is present (no cross -exam, present evidence on own behalf) Probable cause the standard True Bill/Indictment forthcoming with a majority vote of the jurors

Step 7 - Arraignment 1. Held at the Major trial court level 2. Charges are formally levied by the prosecutor with the court 3. Charges and potential penalties are communicated by the court to the defendant 4. Rights are communicated and fulfilled 5. A plea is entered 6. A decision is made as to the next step 7. Bail is considered

Step 8 - Miscellaneous Pretrial Hearings, Motions & Strategies Wrestling match/Chess match analogy Possible hearings: 1. Continuance 2. Change of Venue 3. Discovery Hearing 4. Evidentiary Hearings (involk the Exclusionary Rule) 5. Amicus Curiae

Plea Bargaining Brady v. U. S. - Plea bargaining is legal as long as: *An attorney is present to protect the defendant‘s rights * The plea is voluntarily made (no promises, no coercion) * The defendant has a full knowledge of the consequences. A pragmatic ruling v. a strict Constitutional ruling. Given that some 95% of criminal court cases are bargained, the system would collapse without it. Nonetheless, please bargaining is one dirty and disgusting practice, and flies in the face of due process.

Step 9 - The Trial A. Judge or Jury? 1. Duncan v. Louisiana: defendants have the right to trial by jury if the potential sentence is more than six months of incarceration 2 – Singer v. U. S. : defendants have no Constitutional right to waive a jury trial B. Jury selection process: 1. Dismissals for cause 2. Pre-emptory challenges 3. Scientific jury selection

Scientific Jury Selection Ideal Prosecutor Jury – white, male, Republican, upper income, Protestant, religious conservative, more than 50 years of age, Pro-life, NRA member or sympathizer Ideal Defense Jury – persons of color, female, Democrat, lower income, of the Jewish or Catholic faiths, under age 30, teachers, union members, gun control advocates, environmentalists

Scientific Jury Selection Each side in a court case seeks to seat a jury that is as biased as possible in their client’s favor, but of course it must also pass the judge’s test. No jury can ever be expected to be made up of totally unbiased individuals. By law, a jury must be fundamentally fair.

The Trial Continues… C. Opening Statements: 1. State 2. Defense D. The State’s Case: 1. Direct Exam 2. Cross Exam 3. Objections (sustained/over-ruled) 4. Re-direct/re-cross 5. Badgering witnesses 6. The State rests (and jeopardy attaches)

The Trial Continues… E. The Case for the Defense: 1. Direct Exam 2. Cross Exam 3. Objections (sustained/over-ruled) 4. Re-direct/re-cross 5. Badgering witnesses 6. The Defense rests

The Trial Continues… F. The Rebuttal: 1. Direct Exam 2. Cross Exam 3. Objections (sustained/over-ruled) 4. Re-direct/re-cross 5. Badgering witnesses 6. The State again rests

The Trial Continues… G. Closing Statements: 1. State 2. Defense 3. State Principle of Primacy and Recency

The Trial Continues… H. Judge instructs the jury I. The jury deliberates: 1. sequestered 2. gag order 3. deadlocked jury scenario J. The verdict (generally must be unanimous): 1. guilty as charged 2. guilty of a lesser charge 3. not guilty If a unanimous verdict cannot be reached (if there is a Hung Jury), a mis-trial is declared by the Judge and the case is sent back to the prosecutor for possible re-filing and re-trial. Re-filing is at the prosecutor’s discretion and is not deemed double jeopardy.

The Odds: Juries v. Judges 1. Juries convict about 2/3 of the time (67%) 2. Judges convict about 85% of the time 3. Overall, there is roughly a 75% chance of being convicted if you go to trial

Problems with Juries 1. Competence of jurors: A. General intelligence concerns B. Amateurs in the legal process 2. Structural problems (no note taking, cannot ask questions) 3. Juries depart from the law (nullification, vigilantism, racism)

The Trial Continues… K. Decision step: 1. Judge polls the jury to determine if the deliberation process and proceedings were proper 2. Judgment of acquittal option considered 3. Pre-sentence/sentencing hearing date set 4. PSI ordered 5. Post conviction bail bond considered

Step 10 - Sentencing Pre-sentencing hearing Sentencing hearing Allocution option

Step 11 - Post-Sentencing or Appellate Phase Appellate or post-sentencing bail bond considered Possible appeals: 1. Substantive Sentence Appeal (proportionality) 2. Substantive Trial Appeal (coram nobis) 3. Procedural Trial Appeal

Step 12 - Corrections Administrative Phase Supervisory Phase Release Phase

Step 13 - Cleansing A. Expungement: 1. Waiting period 2. Behavioral requirements 3. Judicial branch 4. Automatic B. Pardon/Clemency: 1. No waiting period 2. No behavioral requirements 3. Executive branch 4. Not automatic

Pardon/Clemency Factors Afford relief from undue hardship New evidence of innocence The defendant is deemed insane The offense was a crime of conscience The defendant has been rehabilitated And always, politics and power

Step 13 Footnotes 1. Expungement is Step 13, but, pardons can be given from Step 2 on 2. Pragmatic resume problem 3. Pragmatic ex-con to police relationship issues (stigma is still there).

Justice Process Footnotes 1. Ours is a confusing system, even to experienced attorneys at times 2. Ours is an organic system, constantly changing 3. Our system works very well for those with power and money/with efficacy 4. Ours is an adversarial (vs. inquisitorial) judicial process