I was reading an article about the killing of Rayshard Brooks, an Atlanta man who was killed by a police officer in the parking lot of a Wendy’s Restaurant.
The officer was fired but has now been reinstated, with backpay, partly because of paperwork errors like someone checking both yes and no to a question. He will also keep drawing pay at his former rate, but can not work because he is not allowed weapons or to interact with law enforcement officers.
But my question is although the shooting was one year ago, they have no trial date because of procedural delays, from both the prosecutor and defense attorney. The main thing I understand is that the first District Attorney has been replaced by a different DA, who tried to recuse her office from the case because she thought the original rushed to charge the cop and she fears there is a bias in the DA’s office.
So if any of you lawyer type folks could explain what procedural delays are usually about, not just in this case, but in your run of the mill cases too. Is it stuff like one side needs more time to prepare? Psych exam for a client? Time to find a witness? Is there a point where a judge just says “Enough of this foreplay already, no more delays.”
Enlighten all us people that got our law degrees from watching Law & Order, or, for you really old timers, Perry Mason.
p.s. If it’s really boring and tedious stuff, just lie to us so we aren’t too disappointed.
First of all COVID has delayed everything. But in normal times, yes, things like that cause delay. Unlike many cases, the typical murder defendant, facing 20 years or more, is willing to let his defense team have all the time they need to prepare. Memories fade, key witnesses might disappear, and the defense might need to track down “uncle Frank” (who may or may not even exist) who will prove the defendant wasn’t even in the area that night.
These lawyers typically have other cases on their desks, so they might say, “Judge, we could be ready in six months, but I have a trial in Courtroom 6 that starts that month and is expected to go 4 weeks. After that is Christmas, and we would probably have trouble getting a jury that could sit for our trial. Let’s shoot for next January or February.” Then the judge says, “I have a long civil trial scheduled for the first of next year, let’s aim for March.”
There might a need for an evidentiary hearing on the legality of the search, or the admissibility of a confession. A party might seek interlocutory appeal of some decisions prior to trial, which even if unsuccessful (the appellate court declines to hear the issue pretrial) could add months to the delay.
In jurisdictions I’ve practiced in, 12 months of delay would be unusual for a criminal case, but I’m sure in other parts of the country it happens.
Why are you surprised? Casey Anthony is a good example - Caylee Anthony’s body was found December 2008, and the trial started May, 2011.
I would suggest that one of the big issue is a murder trial is the investigation to cross all the T’s and dot all the i’s. A murder charge is very serious, and the police want to ensure all details are fully examined before the prosecutor goes to court.
One of the other allegations is when a lawyer knows their client is guilty, guilty, guilty they will try all sorts of tactics to delay the trial. Meanwhile, the prosecutors are seriously overworked (which is why so many cases end with a plea deal on seriously reduced charges) so want to avoid the effort of a trial - unless it is a high profile case. Even with a slam dunk, a plea deal and a half-hour hearing is better than a trial where the sides need to go through evidence in detail.
If for example, you watched the recent Chauvin trial- the amount of detail they went into - what caused death, what could cause death, what timeline, what time help was called, what time the ambulance arrived, how quickly they rendered aid, What was in Floyd’s bloodstream, how he was acting in the time before and during the murder, etc. etc. etc. Then - what each participant told investigators, where the contradictions were, why, etc. Finding all these details, summarizing and reporting, took a while. The prosecutor in presenting his case does not want to be surprised in any of these details.
Unlike Law and Order, the cases are not solved and at trial in a matter of days. As I’ve said before, in a realistic L&O we’d see the trials for the cases a season or two after the arrest.
Meanwhile, the judge will have to do sentencing - which as we can see in many high profile cases, comes with a multi-month wait even after the guilty verdict.
The wheels of justice grind slow, but they grid extremely lucrative.
Thanks @Procrustus , I hadn’t thought about covid delays, that’s pretty much messed up everything. You do criminal law, right? Would you be willing to give some rough estimates of time from arrest to trial for felonies in areas you practiced in? Is it always in the defense’s interest to delay trials in felony cases in hope of things you mentioned like witnesses disappearing and faded memories?
Who said I was surprised? That was not the question I asked. I asked for specific procedural delays, not a laundry list of things that you think take a long time.
Well, I’m certainly glad you’ve told us this before, otherwise everyone on the board would think crimes are solved and prosecuted in an hour. Maybe two hours if it’s a two parter.
Again, this has nothing to do with what I’m asking about. I asked nothing about the sentencing process. I’m asking about procedural delays in the trial.
Thanks, I’m sure nobody has heard that before, and it answers all my questions.
Come on, this is in General Questions for a reason. If I wanted people to chime in with a bunch of unrelated stuff I would have put it in In My Humble Opinion.
Thanks again to @Procrustus for his great information. Especially for using interlocutory appeal, which I knew happened but did not know the name for it before. I will use this as my word of the day, even tho it’s two words. And it’s going to be really hard to work into a casual conversation. Pity the poor person in front of me in the grocery line, they are going to think I’m a weirdo.
I used to do criminal law, but it’s been decades. It’s not always in the defendant’s interest to delay trials, and that’s especially true of the defendant is in custody and wants to get out (or at least get transferred to a better institution–county jails suck). Each case has unique factors that come into play.
In Washington State, we have a 90 day speedy trial rule (60 days for in-custody defendants) There are a variety of things that can extend that period (including waiver by the defendant), but I would expect most criminal cases get to trial (pre-COVID) with 6 months. Murder cases, and other serious felonies, would be the ones that typically would be extended longer.
Wow, that’s fast. So it’s about 90 days if out on bail, but if they are in lockup it’s down to 60 days. And you have enough prosecutors to do it. Sounds like you guys have a pretty good system.
I’m on the other coast from you and often read about people who are held so long before trial that they are just sentenced to time served and released. Which, I guess is efficient, have them serve their time before conviction.
Just another quick question, if you don’t mind. Does a change in DA’s happening between arrest and trial usually cause problems, as in this case? With DAs being an elected position, you would think it happens fairly often. (plus they always want to fun for mayor or governor) If I understand this case, the second DA doesn’t agree with something the first DA did and asked for her office to be recused, which the judge ruled against.
Procrustus already mentioned it, but scheduling is a big part of it. No Crown prosecutor, no defence counsel, and no judge is going to be dedicated to a single case. They’re each busy and are juggling a lot of files. You have to find dates when all three are available. The longer the trial is going to run, the farther in advance needed to find a date when all three are free.
And then there’s the witnesses. Lots of witnesses, police and experts for both sides, are busy and booked well in advance. The Crown and defence have to work out their respective scheduling issues, before they even step into court, seeking a date from the judge.
I’m involved in a lengthy civil trial that we estimate will take three weeks. When we appeared at the pre-trial hearing in January, the earliest block of open three weeks of court time was in November, so that’s when the trial will be, ten months after the pre-trial.
That’s not a sign of an inefficient or slow court system. That’s a court system that’s operating at peak operating rates, especially with the delays caused by Covid, and the difficulty in finding a free block of court time.
I once had to phone a witness to tell him a trial had been set for six months later, and he made some crack about how slow the courts were. But if I had called him up and said the trial was only three weeks from the call, he would have been whinging like crazy about how inconvenient it was, how he had plans for the next three weeks, and why hadn’t I given him more notice? Multiply that for every witness and you see one of the causes for delay.
That’s got to be a big problem in itself. Is there an official way/formula that you use to determine how long a trial may take, or is it just based on the experience of the parties involved, doing a little guesstimating? How much of a cushion do prosecutors, defense and judges give themselves between trials?
For instance, say you agree to a trial date of January 1, and that it will last a month. For whatever reason, it actually takes five weeks for the trial. Does that mean all legal types involved in that case have to try push back all their cases for the next few months by a week? That’s got to be a scheduling nightmare.
Canada does not have a bail system similar to what the US uses, right? If your trial was a criminal one, say a felony assault, what happens to the defendant during all that time until trial? Jail or some kind of on his own recognizance with the condition that he will appear at trial?
Yeah, Covid screwed up pretty much everything.
So, summing up, it sounds like getting everything to align for a trial date is a bit like herding cats. I don’t envy you all that hassle. Do you spend 10 hours a day on the phone just trying to get ahold of people?
By the time you’re asking for a trial date, each side knows what witnesses they’re going to call and a rough estimate of how much time they’ll take. Rule of thumb is that cross-exam normally takes about half the time as exam-in-chief. That gives an estimate that you can give to the pre-trial judge as to how long your case is likely to take.
Depends how much overtime is going to be needed. If it’s just a day or two, everyone might be able to squeeze their schedules, but if any one of the three is already booked, may not be possible and there could be a lengthy adjournment.
The judge’s schedule is the most important in that situation, because if the judge is scheduled to start something else right away, it wouldn’t be fair to the parties in that other case to delay their trial, with all the scheduling probs that could cause. I was involved in one lengthy trial awhile ago that went overtime, resulting in an adjournment of a few months to when the judge and counsel were all free again.
We don’t have bail bondsmen who can post bail for profit. That’s the big difference.
An accused has a constitutional right to reasonable bail conditions. That’s balanced against factors such as flight risk or threat to the public if the accused is released on bail.
Individuals can be r.o.r., or released on conditions, such as checking in regularly with privation services. They may be required to post cash bail from their own resources. Family members might be asked to stand surety, which can include cash surety, again from their own resources.
Onus is on the Crown to bring the matter to trial within a reasonable time, as required by the Constitution.
In a case with a several month delay like this, how much reviewing do you need to do to refresh your memory or are you like me and remember every piece of info they ever read? Do you do a lot of reviewing with your client? And not to make it sound like a bad thing, you are working after all, that reviewing must be billable hours, yes?
Good, that’s what I remembered. Does bail get forfeited if the defendant runs or doesn’t show for trial? Does the bail money then go to the state?
What does this mean? Is it somewhat similar to a parole officer ( although parole officers are after you get out of prison) in the US, who can make sure you don’t skip town, drug test you, make sure you are working/trying to find work, keeping away from other known criminals etc.? Are privation services part of the court system or are they private?
I have to quit for the nite, but thanks a lot for all the answers. I like learning this stuff, especially from exotic foreign locales where we don’t even speak the same language! I’ll check back tomorrow, maybe bother you with some more questions.
Depends. If you’re a Crown on salary, or Legal Aid on defence, no, you just get paid your salary. Private counsel, yes, but subject to terms of your retainer agreement.
Yes, forfeited to the Crown (ie provincial government, not to the Crown prosecutor personally. )
It means a combination of fat-fingering and auto-correct changed « probation services » to « privation services » which does sound much harsher.
Yes, it can be a problem. But you don’t typically schedule trials back to back for that reason. (although we did for criminal trials back in the day. I recall if I had two or three trials scheduled with the same prosecutor they would assign us both to the same courtroom and we’d just do the trials, one after another. We’d pick a jury on the new case while the jury in the last one was still deliberating)
Also, FYI, there has been a new trend of judges putting lawyers on a “chess clock.” If we estimate the trial will be two weeks long, they calculate how much time of actual trial that will be, and divided it up (usually 50/50, but not always). Any time you’re talking, you’re on your clock. At the end of each day, the judge tells you how much time you have left. It keeps things moving, which is nice, but sometimes the leash is too short. I once had a federal trial with some complicated issues. We told the judge it would be about two weeks. He said “you can do it on one.” On the first day of trial he announced he had plans that Friday, and we had to finish by the end of the day on Thursday. By Thursday afternoon I only had 7 minutes left for my rebuttal closing argument. (got a nice verdict though).
In criminal cases the prosecutor is on a salary and the the defense attorney is either a public defender (salary) or a private attorney that usually charges a flat fee. (white collar criminal defense is probably done on an hourly basis, but I’m not sure)
In civil cases the plaintiff’s lawyer is often (not always) retained on a contingency fee basis. The defense attorney, however, is almost always hourly, giving them a perverse incentive to make everything as drawn out and inefficient as possible. They file stupid motions, waste time at depositions, and generally bill the hell out most cases if they can.
We deal with that kind of silly buggerness by costs. For clearly timewasting motions, the judge can dismiss them with costs to the other party « in any event of the cause », meaning even if the defence is ultimately successful at trial, the costs of their frivolous motion are deducted from the trial costs award.
Our judges will only sanction a part for very clearly frivolous motions. (In fact, I don’t think I’ve ever seen costs awarded on that basis) If there is any way a lawyer can argue the motion with a straight face, they won’t get hit with sanctions, no matter how remote their chances were. And we have to take them seriously, since you never know what a judge might do. Some day I’d love to file and opposition that just says “Their motion should be denied as ridiculous.”
Good to know! Sounded a little harsh treatment for someone before his trial even starts.
Was there a normal length of cushion you try for between trials?
This sounds like no fun at all. Are these typically misdemeanor cases with few witnesses etc? Three trials in a day has to make for one long day, for everyone.
What happens if you can’t get in evidence everything you wanted to? Doesn’t matter to the judge, his court -his rules? Must have been a pretty good rebuttal, did you have to talk so fast you sounded like a sped up cartoon?
In your experience, do judges ever tell them to just knock it off already and get to the trial? Or would something like that just be a quick grounds for appeal?
That must be quite a tightrope to walk, even for judges with a lot of experience.
When you do that, could you video it and post it here. I want to see the face on that judge.
I don’t know if I’d call costs « sanctions ». Costs are awarded for every motion and the trial. Costs for motions can be awarded « costs in the cause », meaning whoever is successful at trial gets costs for the motions, or can be on a motion basis, « in any event if the cause, » if the judge thinks that the successful party on the motion properly should be compensated for it. It’s not a professional sanction, because it’s a feature of every motion.
There’s also « costs thrown away » or « costs for the day », if one lawyer asks for an adjournment very late and is granted it, but pays costs for the day to compensate the other lawyer for the cost of prepping for the day, when the lawyer should have sought the adjournment earlier.
