Day-Before Criminal Justice System

By Clayton T. Robertson (Criminal Defense / Civil Rights Attorney)

If you have a beef with the criminal justice system as someone who is charged or who is a family member, you're not alone. It's inefficient, overloaded, and bureaucratic. And those are the good parts. The ironic reality is if you are looking for justice, it's going to take a lot more than to simply declare your innocence.

I'll focus this blog on one issue in particular, which I believe diplomatically cuts across both the prosecution and the defense. (I've been both a prosecutor and a defense attorney, so I have a good perspective.) It is regrettable that often both prosecutors and defense attorneys, including public defenders and many private attorneys, let cases sit idle between court dates. But you don't have to settle for this, nor should you. Let me explain.

On the day before a court date, sometime in the afternoon after their morning appearances, these attorneys finally open the file to work it up, send emails to the opposing counsel, speak with their investigator about items that should have been done weeks or months before, and if you are a prosecutor, request additional discovery from your law enforcement agency. As a prosecutor you may also want to call the "complaining witness" (i.e., named victim) to talk about the case, assuming you can reach them.

So what is the net effect of all of this last-minute jockeying? It means the next court appearance, which you as the client have both feared and expectantly waited on, will be more of the same. You'll hear your attorney say, "I requested the following and am waiting on it." Or you'll hear them vent, "The prosecutor is still not getting us what we need." The scenarios are practically endless.

Now, what happens if you are a diligent criminal defense attorney who works up cases between court dates? Like me, you have more control over your cases. You issue subpoenas, you have your investigator interview additional witnesses, you serve public records act requests, and you file motions, to name just a few indispensable items.

But, and here's the big but, you are still dealing with a DA's office with allegedly overloaded prosecutors, who like those other criminal defense attorneys, finally get to the case the day before the court date. At this point, the prosecutor realizes they forgot to forward the defense's discovery requests to the law enforcement agency responsible for your arrest, they forgot to have their DA investigator follow up on a defense statement provided to them, or any number of necessary follow-ups.

What does this all mean? Do you give up? Definitely not. You need an attorney known for being proactive, vigilant, and who is willing to repeatedly follow up with the assigned prosecutor between court dates. That defense attorney needs also to be willing to file a motion to compel discovery. They need to be able, however diplomatically or forcefully, to explain to the judge at court how the delays are prejudicing their client. And they also need to be able to show a judge that the defense is still working up the case (subpoenas, motions, investigation, etc.) even as the prosecution needlessly delays.

With this zealous attitude by your criminal defense attorney, you will move your case forward, you will receive or obtain the evidence that shows your innocence, and you will rest more comfortably at night between court appearances.

Attorney Post-Script: Sometimes it gets so bad that it's a "morning of" court system. I won't touch that, as the "day before" aspects are bad enough as it is. The frustration is that DAs proclaim that "justice delayed is justice denied," as I did when I was a prosecutor in what seems a lifetime ago, yet how that hurts a defendant attempting to build their defense and to show their innocence when the prosecution is slow or delinquent to produce discovery is apparently a profound irony that is lost on many. An additional point is that negotiations during the craziness of a court appearance may produce good outcomes (e.g., DAs simply wanting a case to wrap up), this does not mean an attorney should not work up the case prior to the court appearance. These issues are not mutually exclusive.