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Posted by on Aug 25, 2015 in Breaking News, Crime, Featured, Government, Law, Politics | 5 comments

Legal Inefficiency

shutterstock_296645264All three branches of American government, on both the federal and state levels, have built in inefficiencies. The judiciary is not excluded. Some of this is structural due to constitutional guarantees and the proliferation of rules and regulations since the birth of the nation. And some of this is caused by lack of personnel, as the legislative and executive branches of the government do not want to spend the necessary money to hire additional people and speed up the judicial process. There are not enough judges, prosecutors, Legal Aid attorneys (public defenders to represent indigent defendants), administrators, investigators, and so forth. Because of these problems, both civil and criminal cases often have long delays, which can mean significant jail time prior to a verdict for some criminal defendants.

A legal maxim ascribed to the British politician William Gladstone notes that “justice delayed, is justice denied.” Though this is more evident for the poor criminal suspects who cannot raise bail and rot in jail, it is also true for many civil plaintiffs who are in financial trouble and want restitution for having been wronged. Corporate lawyers may impede the resolution of some cases for years for various reasons. And in New York, the state has 175 days to bring a felony suspect to trial, so he or she may remain in jail for nearly six months before a defense can be mounted in court. However, extensions can be granted to prosecutors for good cause, increasing the suspect’s jail term for months to possibly years prior to trial.

The fifty states manage their criminal and civil cases somewhat differently, with the legal systems of the individual states reflecting that state’s culture. For example, some states may have restrictions on abortions and abortion clinics, while others do not; marijuana may be legal or allowed for medical reasons or possession may be deemed a crime; speed limits on the roads vary in different states, guns may be carried in different places, stand your ground laws with the use of weapons may be permissible, and so forth. There are also states like Delaware that are particularly friendly to businesses and many companies incorporate there to take advantage of the business friendly climate. However, whatever individual laws a state has enacted and however the legal system works, they must adhere to the laws and regulations as defined in the federal Constitution. If a state’s laws conflict with the Constitution, they may be challenged and overturned by a federal court or the Supreme Court.

One particularly appalling illustration of the inefficiency of a state court system is the civil law suit brought by then New York Attorney General Eliot Spitzer in 2005 accusing Maurice Greenberg, the former CEO of the American International Group of accounting fraud. As of August of 2015, the case had still not been settled. (Andrew Cuomo and Eric Schneiderman followed Spitzer as New York Attorney Generals.) The judge hearing the case, Charles Ramos, in 2014 had frustratingly portrayed it as “a series of seemingly never-ending motions and appeals.” Experts in litigation note that the case is indicative of the way affluent defendants with top-notch lawyers can keep state attorneys at bay almost indefinitely, making a mockery of the legal system and the law. (One projection of the cost of the defense has it as more than $25 million.) David Boies, the head lawyer for the defense, has continuously found ways to delay a trial and the final decision, as Judge Ramos has so far ruled repeatedly against Greenberg. The S.E.C. has already fined Greenberg over the same issue and a class-action suit against him and another company executive resulted in a $115 million settlement by the two of them. Boies was involved in another case involving IBM that lasted even longer than the one against Greenberg, and his wife had participated in a price-fixing case that went on for fifteen years. A case against Carter’s Little Liver pills by the Federal Trade Commission, to have the company remove the word liver from its labels because it was deceptive, lasted thirteen years.

In a particularly egregious criminal case also in New York, a juvenile named Kalief Browder spent three years in the Riker’s Correctional Institute on a felony robbery charge which he repeatedly denied. The prosecution delayed the trial with numerous requests for adjournments, with their one witness changing his story about the date of the robbery. Browder was markedly depressed and attempted suicide twice during his incarceration. Finally, 1,110 days after he had been arrested, on his 31st court date, the prosecution requested a dismissal, knowing the burden of proof for Browder’s conviction was lacking. In fact, the only witness could not be reached because he had returned to Mexico. Browder was released the next day after having served a three year sentence for no proven crime.

Thus, inefficiency and delay is common when the justice system handles either criminal or civil cases. The appeals process and the laws make inefficiency almost inevitable, but it is the little guy who suffers most rather than a litigant or criminal who has deep pockets. New legislation is needed to change matters in most states and on a federal level. But with the majority of lawyers satisfied with the current system and not pushing for change, it is not going to happen.

Resurrecting Democracy

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  • JSpencer

    Yeah, bbb-but “big government”!!!!! 😉

  • Slamfu

    There is another far more disgusting side to these “Legal inefficiencies”. Prosecutors and police will often have a weak case and/or get the wrong person. Knowing they won’t get a conviction if they actually take it to trial, they offer the accused one of two choices, either they cop to the crime with a confession usually for a reduced or deferred jail sentence, or they await trial. If they wait for trial, the DA’s office will conveniently “lose them in the system” for ages. This is in an effort to railroad people into a confession, as time behind bars is still time behind bars whether you are awaiting trial or have been convicted. The other option is to take a plea, but then you’ve got a criminal record. However as most people simply can’t have their lives derailed for the months or years it would take to resolve it, they simply cave and take the deal. This allows police to show they’ve got a good conviction rate and pad their stats about how effective they are being on crime.

    As you might guess, this disproportionately affects the poor who have to rely on overworked public defenders and can’t afford even a modest bail amount, and of course minorities. It is a perversion of the justice system. We talked about Shaun King awhile ago, and he has done a number of good pieces on this very topic. I’d encourage anyone to look them up.

    • tidbits

      New York’s law, which I assume is accurately laid out in the article, needs to change. A more progressive approach is that trial must occur within a certain number of days from arrest and incarceration. If not, the defendant is released pending trial. In jurisdictions that appreciate speedy trial, only the defendant can request a delay beyond the statutory limit.

      That’s because it is the defendant who has the constitutional right to a speedy trial. Only the person to whom the right belongs, the defendant, can waive that right. The prosecution should not be able to defeat a defendant’s constitutional right by giving some reason to the court why a trial needs to be set over.

      Question: has New York’s “speedy trial” system ever been subject to a constitutional challenge, and, if so, what was the result?

      • Slamfu

        I don’t know what challenges have been made, but at least from what I’ve read, NYC is one of the worst offenders in this regard. There are currently hundreds of minors, and countless others, imprisoned in Rikers Island awaiting trial for relatively minor crimes and for lengthy periods. I’ll see if I can find some time today to get links to some of the data on that.

        • tidbits

          Well, I did some research – just cursory – and New York appears to be really screwed up where speedy trial is concerned. Here are a few items discovered:

          – The state’s speedy trial statute does NOT require that a trial take place within six months. It only requires that the prosecutor be “ready” for trial within six months.
          – Once the prosecutor files a “Certificate of Readiness” [COR], the speedy trial clock stops until the next court date. But, the speedy trial clock stops again for all “exceptional circumstances”. These include the likes of:

          – a witness, often a police officer, arriving late to court, meaning the trial cannot begin because of an absent/late witness for the state…instead of dismissal, common in other jurisdictions, NY assigns the trial judge to another trial and continues the trial of the late witness to another date…not counting on the speedy trial timeline.
          – no judge or courtroom available…again no dismissal or release from pretrial custody, just a rationale to push out the trial date and not count the delay against speedy trial requirements, or
          – failure of the defendant to appear. This sounds rational enough until you find out that many failures of defendants to appear at the time set for trial is because the corrections department didn’t get them from pretrial jail to the courtroom on time. Again, set over the case and don’t count it against speedy trial time.

          Opinion: this is a system begging for a Habeas Corpus proceeding…unlawful imprisonment…to get a federal court order requiring a cleanup of the system, perhaps including mass release of presumed innocent pretrial inmates. Some may recall that the US Supreme Court issued an order resulting in thousands of releases from the CA system a few years ago. Currently Rikers Island has more than 800 presumed innocent pretrial detainees who have been incarcerated for more than 2 years without trial, plea or finding of guilt.

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