1.2 Fecal Fingerpainting / Reprise
Book One / 3
Trials frequently experience delays of a few minutes, even an hour or two. The attorneys may need to argue a new issue of law before the judge, or manage a problem that arose unexpectedly. During these times the jurors are required to wait in the jury room until the matter is resolved. Unaware of the reasons for the delay, they frequently express frustration.
Often the jurors’ impatience and curiosity draw my sympathy. Maintaining my impartiality, however, and refraining from any comment about the proceedings is critical to ensuring a fair trial for both parties. When the jurors ask for information, I tell them that at the end of the trial, once they have returned their verdict, the attorneys will have an opportunity to answer their questions. Until then, however, when in the jury room and not actively engaged in the trial, they must read their books, work at their computers, discuss together anything but the proceedings in progress, and otherwise simply wait out the delays.
The county council has also expressed concern with trial court delays. Normal fiscal constraints increase the pressure upon the courts for constant trial output as measured by the amount of time the courts are actually in session.
When normal constraints are aggravated by an economic recession, administrators begin to apply an even stronger pressure on the courts, along with more stringent metrics of efficiency. They will scrutinize the courts closely to assess how many cases are completed, the smallest number of staff those completions require, the least amount of hours sufficient to convene and conclude a trial for each criminal defendant, juvenile offender, civil lawsuit, or divorce.
The goal from the legislative and executive perspectives is to keep the justice system racing along at private-sector speeds and levels of efficiency, regardless of the heavy human demands on a very public-sector institution. Court staff will be asked to explain — to jurors waiting and to administrators counting — why the judges are not always on the bench, why jurors sit in the jury room after being summonsed, or impanelled, for trial.
Any coherent, consistent explanation remains impossible, but it would begin with the recognition that due process takes time. The reasons for trial downtime and delay vary greatly, but the most important reason may be that trials are inherently human-heavy, especially criminal trials and trials involving the interests of children.
By this I mean that everything the courts do they do directly with and for people — in person, and often in crisis. No intermediary staff or space exists. The courts do not create or distribute products to sell to consumers from a distance. Their services are not of a type that can be provided remotely, through computers or telephones. The work is not primarily deliberative, to be conducted alone or in meetings and conferences.
In other words, trial courts cannot set their own immediate or short-term priorities, cannot decide with whom they will speak or meet, at what time and for how long; their services cannot be outsourced; they do not direct the flow of traffic nor influence its volume.
Rather, trial courts function entirely at the demand of hundreds of individuals merging and intersecting each day in the courtrooms, in need of the services that judges provide. Frequently these individuals are thrust into the courts from traumatic circumstances, whether they’re parents from newly-broken families, or criminal defendants and their alleged victims. They enter the system with their own case schedules and event deadlines set in compliance with constitutional requirements. They may be accompanied by attorneys, and the attorneys will have obligations to other individuals, including other clients, but also agents and officers, each responsible for enforcing their own rules and internal procedures.
Through nearly every minute of a trial judge’s day he is dealing directly with people, people who are in trouble and whose troubles must, by job description, become his own. Whether individuals appear in our court to enforce a settlement agreement, to evict a dangerous resident from public housing or enforce the right to public housing, to modify a parenting plan, appeal an administrative decision denying unemployment benefits, settle an estate, or defend against the prosecution of a murder, they bring with them anger and resentment, worry and anxiety, sadness, bewilderment, and blame.
In response, the judge — with legal education and experience but rarely training in other professional fields — must play a sort of judicial musical chairs, getting up from the bench metaphorically at one moment in order to rush into the chair of a psychologist or social worker at the next, then again into the chair of a drug and alcohol abuse specialist, and finally into the chair of a trades and occupations counselor before returning to the bench where he makes his ruling. At any minute he may be required to exercise the discretion and judgment of a highly-skilled mental health professional but without benefit of more than his own human experience and the wisdom that develops from a compassionate, deliberative mind.
The problems criminal defendants may present to a trial court judge are staggering. Most common are profound mental health issues, illiteracy, poverty-related obstacles to court appearance or compliance, violence-prone antisocial disorders, severe drug and alcohol dependencies, episodic reactions to prescription drugs prescribed by jail health staff, chronic unemployment, and acute ill health. All of these problems appear before us as humans in deep trouble, in court with their families if their families accompany them, or — much worse — entirely alone.
From an administrative perspective, these humans are cases, each with a cause number, a file, and a case history, waiting in a long line of other cases before them for individual judicial attention and resolution. Groups of courthouse staff will be dedicated to the job of ranking them — by trial date, by severity of the offense, by number and availability of witnesses, by jail transportation and coordination issues, by constitutional due process requirements, and by many other competing concerns.
They are ranked, and then by rank they are placed on a list for assignment to trial when their trial dates arrive. If a backlog exists of criminal defendants awaiting trial, the day’s list may contain more defendants scheduled for trial than there are available trial courts to receive them. Those defendants’ emotions and expectations will be ratcheted up another notch as another layer of scrutiny and priority is applied to their cases.
Finally, once a case is assigned out to trial, the court’s own staff may encounter conflicts with other agencies and employees upon whom staff depend to prosecute or defend the case in conformance with the laws. Most of us responsible for the progress of a trial have our own demands and expectations, but they are instantly tempered the moment they crash into the reality of others’ more pressing crises.
The Wade trial, for instance, was expected to last from four to six days according to the attorneys. The first two days were filled with pretrial motions, jury selection, and opening statements. The State then began its case on the third day, presenting eight witnesses to the jury.
On the fourth day, in the middle of a Thursday morning, Wade arrived in his street clothes for trial and sat quietly through a few preliminary discussions about administrative matters. A few minutes into the print examiner’s testimony, he moved for a mistrial in effect by his conduct in front of the jurors. We had completed three trial days smoothly, but matters were about to slow down considerably.