New Judges: Coda – Size Doesn't Matter

 Posted on November 08, 2008 in Uncategorized

Chicken-littling (from a letter to the Chronicle) about the sudden appearance of new judges, not fresh out of the DA's office, in Harris County's Criminal Justice Center:

It will be interesting to see the changes in the next few years. With eight courts being led by judges on a "learning curve," watch their dockets increase. Watch the appellate courts reverse decisions, the tax dollars wasted and the criminals who are set free.

"Watch their dockets increase." What that means, for the uninformed, is that the courts with new judges might not be able to dispose of (by trial, plea, or dismissal) as many cases as the State files, so that the number of defendants on the docket will creep up. A report circulates regularly (weekly?) around the courts with a bar graph showing how many cases are outstanding in each court. It might take a couple of years for the trains to start running on time in those courts with new judges.

But the courts' emphasis on trains running on time is misplaced, and reveals confusion about their proper role.

Consider the key players in the criminal justice system:

1. The legislature, which makes the laws and creates the courts;

2. The police, who arrest people accused of committing crimes (and sometimes even investigate);

3. The DA's Office, which charges and prosecutes people the police have accused of crimes;

4. The defense bar, which defends those people, trying to clear their names or minimize their punishment; and

5. The judges, who act as referees between the DA's Office and the defense bar, decide punishment when defendants so choose, and decide facts when both sides allow them to.

The legislature could reduce dockets by making less stuff illegal, or by creating more courts. The police could reduce dockets by arresting fewer people. The DA's Office could reduce dockets by filing fewer charges, or by making lower plea-bargain offers. The defense bar could reduce dockets by convincing clients to take higher plea-bargain offers (not that we would - docket size is most emphatically not our responsibility - but we could).

So what can judges do to reduce their dockets? In Texas they can't dismiss cases except on the motion of the State. They can't ethically pressure defendants to plead guilty (though I have seen at least two of the departing judges do just that, and I don't know that all of the incoming judges are above it). They could, I suppose, pressure the State to make lower plea-bargain offers, but that would still depend on the State's participation. Or they could bring cases to trial faster. And that's it.

Our criminal district court judges should be trying as many cases as they can. But even if they were men and women of steel with no administrative duties, it's hard to see how they could conceivably try a hundred cases each per year - 2200 across all the district courts - or how that would make any serious dent in the 50,000 or so felony cases filed every year.

So if we're going to place responsibility for courts' docket sizes, we should be placing it on the legislature, the police, the DA's Office, or the defense bar - anywhere but on the judges. (We could, I guess, try to place it on the accused, but they, like the defense bar, don't work for us.) If the legislature creates too many laws and too few courts and, as a reasult, the police arrest too many people and the State files too many cases, it's not the judges' job to act as enabler to the other branches of government.

When judges accept responsibility for the size of their dockets, they take an improper role in the system. They align themselves with the prosecutors (who want to reduce dockets, and actually have the legal and ethical power to do so - witness occasional "fire sale" plea bargaining) rather than justice. There is likely an opportunity cost: time spent managing the docket might be better spent doing the things that are and should be part of their job. That job is to do justice, and justice can't be rushed.

So the alarmism about dockets increasing may be well-founded, but it should be met with a resounding "so what?" The dire warning about reversals, on the other hand, is almost entirely fictive. More on that next.