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My Lunch with Bill

Yesterday I had lunch with Cuyahoga County Prosecutor Bill Mason.  Well, me and about thirty other members of the Criminal Section of the Cleveland Bar Association.  Mr. Mason had dropped by to chat us up about the numerous innovations the courts and the prosecutor's office were making ensure that the machinery of the justice system functioned more smoothly.

The first part of the talk was devoted to identifying all the chefs who were concocting this brew, culminating in the display on the overhead of an organizational chart which seemed only slightly less complicated than the Pentagon's.  I suppose I should have been reassured by the fact that no fewer than twenty separate committees are charged with the task of analyzing and reporting on what goes on, and recommending further changes, but the only thing it brought to mind was the old observation that a committee is an alleyway down which ideas are lured to be strangled.

The meat of the meeting, though, was the discussion of the new "Fast Track" program.  As most criminal lawyers know, the felony charging process goes like this:  arrest, initial appearance in municipal court, preliminary hearing, bindover to the grand jury, indictment by the grand jury, pretrials, and plea or trial.  It is not unknown for this process to take as long as a year in this county, and sometimes even more.

The "Fast Track" substantially shortens this time:  within 48 hours after his arrest for a felony, the defendant is brought before a common pleas judge for "arraignment," and assigned both a judge for his case and an attorney.  Five days after that, the defendant and his attorney will appear before the court for a pretrial.  At that time, the defendant can choose to plead, or the case will be referred to the grand jury, and will proceed as it normally would.

I have a problem with that, and I said so.  The relevant consideration in advising a client whether to plead is what the likely outcome would be at a trial, and I just don't think you have the information available at that point to make that determination and advise your client properly.  According to the flowchart presented at the luncheon, defense counsel is presented with "full discovery" at the time of the meeting.  I'm not so sure about that.  I talked to one lawyer a couple weeks ago who'd participated in the program.  His discovery consisted of three lines on a post-it note.  "But it was a big post-it note," he acknowledged. 

Basically, I think at the point of that first meeting, you're in a position to tell your client no more than, "If you plead, you're subject to this range of penalties, and if you don't, you'll get indicted, and I don't have enough information as to what could happen at that point."  That's the same advise his wife or his bartender could give him.  And, of course, if the client doesn't plead and later winds up worse off, you're the one to blame.

There were a couple of other lawyers at the luncheon who spoke up, and they really didn't have any problem with the proposal.  One noted, correctly, that many of these cases are quite easy to handle:  there's not a whole lot of complexity to your basic crackpipe case.  Another noted, again correctly, that other places like New York and Chicago are doing this.  Those attorneys are far more accomplished and experienced criminal lawyers than I'll ever be, so they're probably right.

And there is certainly an upside to accelerating the process in this fashion.  I've had clients sit in jail for a month or two on a minor felony drug case.  That won't happen here.  Besides, there's a lot of crap cases going through the system, and figuring out a way of resolving them quickly is certainly to everyone's advantage. 

But you know what?  I still have a problem with this.  The reason most of us do this is because we're trying to keep the system honest.  There are a lot of bad things that can happen to you in life, and one of them is the government deciding that you've done something and ought to go to prison.  Being charged with a crime brings a lot of weight down you:  prosecutors and detectives and cops and crime labs and anything else that they find necessary.  Arrayed against all that, you've got a bunch of constitutional rights which don't mean what they used to, a concept of reasonable doubt that juries sometimes pay attention to and sometimes don't, and your lawyer.  The lawyer's job -- our job -- is to make sure that the system doesn't run over people. 

That doesn't mean this is a bad program, especially if there are strict guidelines in place to limit it to cases which can and should be speedily resolved.  I'm not sure that's going to happen; I've seen felonious assaults go into the program.  What's more, there'll be a "mission creep" effect at work:  once the bean-counters figure out, ""Gee, look how much time and money we're saving on these cases," there's going to be a greater inclination to feed even more of them into the program.  Speed of disposition becomes the primary, if not sole, consideration.

It's going to be easy for the courts and prosecutors to buy into that mentality.  If we start buying into it, we're not doing our job.

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