Musings on the Criminal Justice System: A Post Written By Request
Recently, commenter BfC commissioned a post from me. The way this happened was actually a little confrontational at first. He complained that I wasn’t writing about something or other. I retorted that I would write about what he wanted me to write about (instead of what I wanted to write about) for the low low price of $100.
Frankly, it was mostly a way for me to say “screw you, I’ll write about what I want.”
But, to my surprise, he took me up on it.
BfC ended up being very generous; he didn’t specify a topic. When I pressed him to articulate a particular topic, he said he wanted an “interesting and in depth discussion here on the court system.”
For me, that is timely in a way. I’m a longtime gang prosecutor. I’ve been in the gang division for nearly nine years, which is decidedly on the long end for an office that tends to rotate people out of assignments after 5-7 years. Even before that, as a line D.A. in Compton, gang murders were a part of my assignment for three years, and I tried several cases that normally would have been tried by the gang unit. I’ve tried over 35 murder cases, which I say not as a boast, but by way of saying that I’ve been doing this a long time.
And I’m about to stop. At least mostly. At least for now.
Yes: my tenure in the gang division, where we regularly prosecute murders committed by gang members, is about to come to an end this month. Starting January 29th, I’ll be fighting habeas corpus petitions filed by people convicted of murder and given the death penalty. I’ll be keeping one of my gang murder cases, but my next gig is largely a writing assignment, with the occasional evidentiary hearing.
I could have easily stayed in gangs forever. The only thing I’d rather do is prosecute crimes committed against peace officers. But I had a pretty good run.
So now is actually a nice time to reflect on the system a bit, and I thank BfC for the chance to do so. (Of course, everything I say is as a private citizen, and is not intended to reflect the views of my office.)
BfC said in a comment:
As a “civilian”, I see the system as both being biased against “us” and at the same time, many times, unable to give any real form of justice (tossing evidence that was “illegally” collected and freeing somebody “guilty”, but at the same time no charging of the person(s) that apparently violated state and federal laws about gathering evidence.
It saddens me that, increasingly, members of the public express the opinion that they think the system is failing them or biased against them. Rather than address the exclusionary rule or other specific complaints BfC made about the system, I want to talk a little bit about the way the system treats the people I care about the most: the families of the murder victims.
I can’t begin to imagine what it is like to go through what the families of murder victims go through. The closest I have ever come is listening to victim impact statements at sentencings in murder cases. Most readers have never heard one of these. They are among the most emotionally gut-wrenching things anyone can sit through. The family of the victim stands up and addresses the court and the defendant and tells them how this murder has ripped their family apart. They are very, very hard to listen to. I can only imagine how hard they are to compose and to deliver.
Many people cry. Some are composed throughout. Some people forgive their son’s or brother’s murderer. Others tell the defendant in detail how they want to see the defendant raped in prison. (Judges often shut this sort of commentary down.) The most common sentiment I hear is a combination of sorrow for the defendant’s family (who are usually gathered there in the courtroom as well), together with some variant of this statement: “But you get to see your son. You can go visit him in prison. I’ll never get to see my son again. All I can do is go visit a stone in a graveyard.”
Generally, family members are happy with me by the end of the case. I always tell them to stay in touch, even after the case is over, and some do. I recently got a call from a victm’s relative wishing me a Happy New Year and telling me about her life these days, and it made my day.
But getting to that day of justice and closure is a long road.
Ultimately, what you see in your criminal justice system is a genuine attempt to balance the rights of the accused against the need for justice. The main complaint I hear from the families of murder victims is that the process takes too long. It’s fairly common for a murder case to take two years to get to trial. If issues come up, that can be longer. Meanwhile, various important anniversaries come and go, and come again. The decedent’s birthday. The day he died. Christmas, which is always hard for a family that has recently lost a loved one. These come up on the calendar every year, and they are some of the hardest times people have to face.
What kind of issues can come up that delay these cases? I’ll tell you about two that have caused me fits in trying to get cases to trial within a reasonable period of time.
One is when a defendant goes “pro per” (short for “in propria persona,” or “in his own person” — i.e. the defendant is representing himself). In a gang case, defendants often do this because they want to get their hands on “paperwork” (police reports, transcripts of interviews or court testimony and the like) that shows a witness has cooperated with police. Gangs often use this paperwork as justification to threaten, attack, or (rarely) even kill a witness. The witnesses most at risk tend to be gang members who are testifying, against their own gang or even a rival gang . . . but anyone can be at potential risk.
We have developed ways of dealing with this situation, which prevent defendants from getting their hands on this “paperwork.” I won’t bore you with all of the details; it involves watermarking documents, protective orders, and ensuring that only their investigators are allowed to possess the paperwork. But this tends to drag out a case, because defendants have fewer hours in the day during which they can access some of the key documents in their case.
Again, it’s a balancing act.
Another form of delay that has come up is Proposition 57, a measure passed by the voters that limits the ability of prosecutors to “direct file” on juveniles in adult court. Most of my career, if a 17-year-old gang member (for example) committed a murder, a prosecutor would have discretion to file on that juvenile in adult court. Now, a juvenile judge must make the determination whether to send the juvenile to adult court.
Some courts interpreted this measure as requiring juveniles that had already been filed on in adult court to be returned to juvenile court, for a determination as to whether they should be returned to adult court. In several cases of mine, I had one or more adult defendants in the same murder case as someone who was a juvenile when the murder was committed. Due to these court rulings, the cases get split up. The adult defendant has his case in adult court, and the “juvenile” has his case in juvenile court. Often, these “juveniles” are now 20+ years old. Maybe the case took a year or two to solve. Maybe the case had already been pending for a significant period of time in adult court. Sometimes both are true.
The law applies to anyone who was under 18 when they committed the crime, no matter how long ago that was. I have heard of 35-year-olds arrested on cold cases being sent to juvenile court to see if they should be treated as an adult!
The process for getting cases to adult court takes several months. It can take over a year, as defense attorneys order dependency court records, school records, disciplinary records, and the like, and hire psychologists and other mitigation experts to paint a picture of the defendant as a victim of circumstance who deserves to stay in juvenile court. Meanwhile, the adult co-defendant usually awaits the return of the juvenile for strategic reasons.
And the case ages. And the family members often come, month after month, to every court appearance. They come to the pretrials on the adult co-defendants. They come to the court dates on the juvenile case. And they wait. And those same anniversaries — of joyous events like births, and tragic events like deaths — come and go.
And still they come.
Again, this is a balancing act. The courts, or some of them, think this is what the People of the State of California voted for, when they voted Yes on 57. I think most of the public would be surprised to learn this is going on. But I don’t wear the black robes of the judges who make these decisions.
I don’t know if this answers any of BfC’s questions about the system, or whether it’s really there to protect the citizens. I still believe, despite all its flaws, that we have the greatest justice system ever conceived by man. Yes, the delays are often unconscionable. Yes, some of the rules of evidence, or about the conduct of a trial, might seem arcane or even counter to common sense. But many of those rules are an attempt, however imperfect, to balance those two critical concepts: the concept that we must protect society from dangerous criminals, and the concept that everyone is entitled to a fair trial under the principles of our Constitution.
It’s not perfect.
But like so many other people in society, we do our best.
[Cross-posted at The Jury Talks Back.]