Public Defense

The problem with administrative law

By Gideon

Is that it doesn’t matter what the rest of this sentence is. As someone who knows next to nothing about administrative law, I wouldn’t even hazard a guess, lest someone with intimate knowledge of that field or someone with Googling skills or someone with intellectual honesty and a blog would point out how and why I was wrong.

But this guy doesn’t seem to care. In an op-ed laden with original ideas, he writes:

The National Center for State Courts maintains a database of Case Processing Time Standards, which lay down guidelines for how much time should elapse between indictment and disposition of a case. Like many states, Connecticut?s voluntary guidelines for Class A felonies call for 100 percent of cases to move from arrest to disposition within 180 days.

Hayes faces 17 felony charges ranging from murder to burglary, including 14 Class A felonies, two Class B felonies, and one Class D felony. Alleged accomplice Joshua Komisarjevsky is accused of 14 Class A felonies, 5 Class B felonies, and two Class C felonies.

According to a June 2000 research brief by the National Institute for Justice, the American Bar Association sets a goal of resolving all felony cases within one year from the date of arrest.

Using either of these measures, justice in the Cheshire case is more than two years overdue.

Either he doesn’t understand the fatal flaw in his argument or he does and ignores it. I don’t know which is worse. But I’m sure you, dear reader, have already seen the problem with using that “statistic” to support the argument that the Hayes trial has taken too long: that none of those “guidelines” or “goals” apply to death penalty cases. [He also (erroneously?) misquotes the "voluntary guidelines" statistic. The voluntary guidelines for Class A felonies call for 18 months between arrest and disposition, not 180 days. These were also adopted in 19-frickin'-94.]

He quotes William Gladstone saying that “justice delayed is justice denied”. Quoth Justice Thurgood Marshall:

This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.

Ford v. Wainwright. So how long do capital cases take, on average, from offense to the start of trial? Here’s a report from the Office of Legislative Research, dated March 3, 2009. There’s more:

The same study, in which criminal courts in nine different states were studied to assess case processing speed, found that 68 percent of felony cases were resolved within 180 days. Interestingly, it also found that the pace of proceedings often depended as much on the local legal culture as it did on the particulars of the cases involved.

This evidence suggests that the process can be sped up without significant additional investment of resources and without sacrificing the fairness and quality of the trials.  Given the magnitude of the horror in the Cheshire case and the slow process that has carried its suspects to trial, cultural changes seem like a small price to pay for much-needed improvement.

I’m not sure that the assumption that a quicker resolution of criminal cases implies the operation of the system in a favorable manner is correct: to me, it implies the opposite: that defense attorneys are less likely to vigorously advocate for their clients, to investigate defenses and to fulfill their constitutional duty to represent the interests of the defendant. If anything, it suggests to me that there is a greater need for resources and for training.

There also isn’t – and shouldn’t be – an inverse correlation between the “magnitude of horror” in a criminal case and the length of time it takes for resolution of the case. If anything, it should be the opposite. The criminal justice system cannot be held hostage to the emotions of victims.

Yet despite all this, it has taken more than three years to deal with Hayes while Komisarjevsky?s trial has not even started. And, if the trials conclude as most everyone expects that they will, with guilty verdicts and death penalty sentences, justice is almost certain to stretch out even further. Michael Ross, the last man put to death by the state of Connecticut, spent 17 years on death row before his execution on May 13, 2005.

Complaining that Komisarjevsky (the co-defendant) has yet to be brought to trial is yet another glaring example of the holes in the logic of this “op-ed” piece: that a joint capital trial for two men accused of committing terrible crimes, who will inevitably have inconsistent defenses, is an almost certain recipe for disaster and reversal should be obvious to anyone with even a passing ability to think critically.

You don’t need me to point out that the chorus of calls for the “reform” of our criminal justice system are tied directly to the concert-like atmosphere surrounding this one specific case. But isn’t these very cases that test our mettle as a society and that push our system of justice to the limit, to see if we are weak enough to let it break under the pressure of sensationalism and blind anger?

Can anyone tell me how many other capital prosecutions are currently ongoing in Connecticut and how long they’ve taken from offense date to trial?

Of course, there is a very easy way to solve the immediate problem of the “lengthy delay” in the prosecution of Hayes, one that would have resolved this case almost three years ago: take the death penalty off the table. But some want to have their cake and eat it too.

Full post as published by A Public Defender on September 20, 2010 (boomark / email).