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ACONFLICT ANALYSIS OFCONFLICT
DENNIS L. BLEWITT, Esq.
Pressures put on the criminal justice system combined with rapid change in that system have intensified the natural conflict between criminal defense attorneys and the judiciary. The accusatory common law system of criminal law in the United States is perceived by administrators as cumbersome and inefficient. With the increase of population, use of the courts, litigation, arrests, case filings and other factors, judges make fewer traditional legal decisions and are progressively assuming the role of administrators, concerned primarily with moving cases through the system or docket control, rather than deciding cases. The job perception changes and the parties have not analyzed the effects of these changes other than registering dissatisfaction. There is a loss of power in the judiciary as judges become administrators rather than decision makers. This power is shifted to the prosecutors who can more readily control the flow of cases through the system.
The defense bar is also losing power as fewer options become available in defending cases. The defense attorneys are becoming adverse to their clients as performance or results diverge from their client’s expectations. Clients expect trials, courtroom drama and a chance to be heard, even if they are wrong. They believe the system should give them a forum and a good lawyer can get them off. The lawyers are pressured not to “waste” court time with such things and have to spend exceedingly more time explaining to the client why it is not in the client’s best interest to use up court time by defending themselves. By aiding in the administration of the cases, they disappoint clients.
Furthermore, they have to explain why most court appearances are administrative in nature with no testimony or other performances expected by the television educated clients. Available options in defending criminal cases have decreased with changes in the rules, evidentiary, criminal intent and constitutional theory.
The prosecutors are gaining power as the power of judges and defense attorneys decline. Prosecutors have become the primary decision makers in the system. They decide which cases to try, which ones to settle and which ones to file. Additionally, they are determining sentences and the nature of the charges with plea bargaining. They administer victim programs, diversion programs and police training programs. Lobbying efforts have achieved changes in the rules of evidence, making it easier to present evidence, change in the required amount of criminal intent, making it easier to obtain convictions, increased and mandatory sentencing, making it easier to obtain plea bargains, and increased budgets for victim and diversion programs. They are also less depending upon the legislative branch for funding with the advent of condemnation and forfeiture laws. This power shift has made the system behave as a criminal law system based upon a Napoleonic Code rather than the common law system that it traditionally has been.
The results of the change of these factors have caused appreciable dissatisfaction of both judges and defense attorneys and conflict within the system, causing conflict with the system and between judges and defense attorneys. There is almost a cultural depression with defense attorneys. Corruption and abuse is observed without any remedy, check or balance.
In twenty years, the criminal justice system has gone through unprecedented change caused by Gideon v.Wainright (1963) 372 US 335, 9 L Ed 2d 799, 83 S Ct. 792, and its progeny. All criminal defendants were required to have legal representation, causing an increase in number of cases litigated and the institution of a Public Defender’s office in most jurisdictions. In the Sixties, there was an increase in the case loads of the courts with draft and drug cases. These cases dealt with political and social issues and took up an increasing amount of court time. Also, because of the methods of law enforcement much more time was consumed with the hearing of constitutional issues such as free speech, self- incrimination, and search and seizure.
The political party in power in the two decades of the seventies and eighties won elections on a “law and order ” platform, resulting in vigorous prosecution and law enforcement and a shift of power to the executive branch spearheaded by the legislative and acquiesced to by the judicial. Police were “modernized” with the assistance of the Law Enforcement Assistance Agency. Some lawyers commented on the terms of repression, but most did not feel an inordinate amount of conflict with either the system or judges. The conflict described by the attorneys interviewed was that which would not be expected in an adversarial context.
In approximately 1970, Colorado enacted a new criminal code. A former state Supreme Court Justice, working in the Denver District Attorney’s office, drafted a proposal and presented it at a committee of one hundred defense attorneys and prosecutors. It was a “model” code presented by an interest group. The Justice said, “. . . here’s your new criminal code. I want you to study it and pass it unanimously.” A prominent defense attorney replied, “In all due respect, I’m nobody’s God damned rubber stamp.” The attorney walked out of the committee, followed by the majority of defense attorneys. A compromise code was drafted and presented to the legislature, who promptly changed the code back to its original form due to the lobbying efforts of the District Attorney’s Association.
One of the main debates of the proposed new criminal code was the change of law in defining criminal intent. Until the proposal, the legal distinction between felony and misdemeanor was that the intent to commit a felony had be a specific intent to do the act and the harm. The proposed legislation lowered the requisite level of criminal intent to general intent. This allowed a significant amount of conduct previously defined as misdemeanant as felonious. Another change was the provision for preliminary hearings. Additionally, conduct not previously defined as criminal was proscribed by the code. The defense attorneys viewed the changes in the law as giving an inordinate amount of power to prosecutors.
At approximately the same time, the rules of evidence were changed. The U. S. Supreme Court endorsed the Federal Rules of Evidence which the states adopted. The rules changes abolished many of the common law requirements of evidence and made criminal trials easier for the prosecution to prove. A postmodern approach resulted where the rules of evidence essentially became whatever the decider wanted them to be.
The traditional view that a criminal trial was a show cause for the sovereign to prove its authority to take jurisdiction over a defendant changed (accusatory common law system) to a view that a criminal trial was a search for truth (inquisitorial civil law system). Prosecutors started asking defense attorneys if the defendants were guilty. Courts promulgated rules that defendants had to disclose witnesses and defenses to the prosecution. The rationale was that the trial was now a search for truth instead of a show caused proceeding.
Constitutional guarantees diminished, especially in the areas of confession and search and seizure. The exceptions to the Fourth and Fifth Amendments to the Constitution protections became the rule. The constitutional prohibition against compulsion of testimony by an accused prohibited by the Fifth Amendment already defined in terms as a prohibition against selfincrimination, became practically voided with the advent of use and transactional immunity. Reasonable grounds to believe and articulable suspicion appeared in opinions regarding the prohibition against warrantless searches and seizures, replacing the rule for probable cause. Exceptions to the requirement that a warrant be obtained multiplied. The judiciary became superfluous.
Legislatures passed more punitive sentencing laws as the public demanded retribution rather than rehabilitation. Mandatory sentencing laws took power away from judges in sentencing and decreased the importance of mitigation. Justice became thought of in terms of punishment rather than fairness. Law was no longer based upon evidence, need or necessity, but upon reaction to publicity.
The change caused an increase in the power of the prosecutor’s office as power to argue effectively for their clients diminished in defense attorneys and power to decide matters diminished in the judiciary. The system started to develop characteristics of a Civil Law system typical under the Napoleonic Code as is the case on the European continent. Presently, the accusatory system is being replaced by an inquisitor system with the prosecutor acting as an inquisitor.
The conflict between defense attorneys and judges cannot be explained without some understanding of the legal system as an institution and how it behaves. Most of the observations about the institution of law have been made by political scientists and lawyers and has been neglected by sociologists. To understand law and the participants in the institution is to understand power. Shur’s definition states that . . . “Law is the administration of state power.”
Edwin M. Schur, Law and Society (N. Y; Random House, 1968: p. 74). He also stated that . . . “The essential work of the trial court is the determination of facts.” Schurr, (1968: p. 46). This has changed in the last twenty years, so that it would be more accurate to state that the essential work of the trial court is to administer cases. This shift of function was commented upon by Mayer, who observed that ” . . . the swing form common law to statute law . . . does not destroy the role of judges and probably increases their work load.” Mayer, The Lawyers (N. Y.; Dell, 1968, p. 135). The courts are the arbiters of State power, between the other two branches of government and between the State and the citizens. However, it is an organization and a part of the State. It no longer is an arbiter, but a rubber stamp.
The courts have appeared to have become depersonalized. There appears to be more general court time devoted to hearing disputes between various governmental entities and less between individuals. Hall observed (citing Coleman 1976) that ” . . . the State is more comfortable dealing with other organizations than with individual persons . . . ” Richard N. Hall, Organizations, Structure and Process (Englewood Cliffs, N.J., Prentice-Hall, Inc., 1977: p.8). There is the preference to deal with groups rather than individuals, although the majority of the users of the courts are individuals. This preference should tend to favor the wishes of group users such as district attorneys, police agencies and public defenders= offices over those of private attorneys. Private lawyers are viewed as obstructions to the prompt and efficient administration of justice.
There is increasing pressure on the courts, with little increase in funding and in the creation of new judgeships. More criminal cases are brought and as administrators, the judges are adopting procedures contrary to common law tradition. Emphasis is upon process.
There is a feeling that ” . . . (l)aw should be socialized . . . It should be doing things for people and should increasingly incorporate active state-administered processes of social control . . . ”
Administrative rather than conventional process is seen as better able to cope flexibly with a variety of factual situations and changing social conditions. Court adjudication is viewed as being hamstrung by legalistic formality and (there is) a tendency toward the inflexible application of general rules.”
Related “ . . . is (a)wareness of all the strategies that may characterize “combat” of the court trial has led to considerable disenchantment concerning the ability of the judicial process to effect an accurate and complete finding of the facts. An administrative agency, which can conduct its own independent and objective investigation often seems preferable.” Schur, 1968: p. 200.
There are more acts defined as criminal, more defendants, more prosecutions, easier prosecutions and little increase in judicial personnel. Additionally, there have been significant changes in social conditions. Society is open and fluid. To cope with this, the courts have become mechanized and specialized. This has changed the nature of what is done in the courts. “There is a shift of goals of the legal system from that of serving justice to moving cases.@ Hall, 1977: p. 67. “[C]hanges in social conditions are reflected not only in areas of substantial law, but also in overall changes in the organization and process of legal institutions themselves.” Schur (1968: p. 123). As a result of the change, the judges and defense attorneys feel alienated, which has resulted in conflict between individuals in these roles.
Goals change for three major reasons. The first reason, direct pressure from external forces lead to a deflection from the original goals. The second, pressure from internal sources may lead the organization to emphasize quite different activities than those originally intended. The third, changed environment and technological demands lead the organization to redefine its goals
Goals may be altered drastically by changes in the power system of the organization . . . (in what) . . . Etzionni calls “goal displacement.@
Organizations tend to organize their energies (goals) around activities that are easily quantified. Hall, (1977: p.76)
There is a trend toward specialized tribunals, and a shifting from the use of courts to administrative agencies, with administrative remedies to expedite justice and relieve crowding. The trend in traffic courts defining traffic cases as petty offenses and being heard by referees is the most apparent example. They operate essentially as profit centers and collection agents.
Additionally, the system has become more formalized with an increase in procedural rules. Judges are on the bench more and are generally less available to litigants= counsel than in the past. Procedure seems to take precedence over substance, with the results perceived by defense attorneys and litigants as unfair. Procedure, and formality are key features of present-day Western legal institutions. There is a conflict between that formality and substantive justice .Durkheim’s basic thesis presented in his On the Division of Labor in Society was that a society’s law reflects the type of solidarity existing within the society.’ . “…it is a fact of history that the legal order with almost equally ease be made to provide the underpinnings of a highly inequitable social order.” Schurr, (1974: p. 89, 109).
The roles and training of the actors must also be considered. Judges, defenders and prosecutors are attorneys. They are trained to act as advocates in an adversarial system. However, courses on criminal law are very limited in law schools. Although the actors had essentially the same law school training, professional training and career tracks differ. The career track for judges tends to be through government service, such as in a prosecutor’s office. Judges have separate continuing legal education courses than practicing attorneys. As former prosecutors, they rarely represented individual clients, but based decisions based upon reports and interviews with witnesses. Most of them are uncomfortable with interpersonal relations. They also have a particular bias, which increases as the police subculture develops.
On the European continent a student in law school decides whether he wishes to be an advocate or a judge. If he is to be a judge, he rises through the administrative process rather than private practice. The most likely route to an American judgeship is through the prosecuting attorney’s office . . . Mayer (1968: p. 166).
The defense attorney’s position is different. He deals with individuals and represents them, not an abstract named the government or state. His not a part of a sub-culture, but more generalized.
Nobody is trained in law school–or prepared by the culture–to operate as a defense lawyer in such a system. It is a true paradox that a period when the Supreme Court is insisting on ever-widening representation by lawyers in the criminal process should also be a period when the traditional and popular function of the lawyer in the criminal courts has almost disappeared.
Basically, however, the Criminal defense lawyer . . . works as a negotiator for his client.
Meyer (1968: p. 157)
The prosecutor represents the sovereign, and makes prosecutorial decisions. The defense attorney’s position is different. The judges and prosecutors obtain their power from the structure, which is defined by statute, constitution and custom. Defense attorneys= power is referent. “Power is legal when it receives its right to power from a higher office.@ French and Raven refer to “referent power.@ Most lawyers receive their power from their clients and therefore have some referent power. Richard N. Hall (1977: p. 210). The defense attorneys ordinarily have very little power unless they defend powerful figures. Therefore, defense attorneys have little power to lose. Judges, however, do lose power due to organizational changes.
The dissatisfaction of the defense attorneys is due to causes in addition to loss of power. It is due in a large part to alienation, lack of relation with the judges and a breakdown of the reward system that the defense attorneys valued. Professionals want traditional rewards, but also want recognition from fellow professionals. Hall (1977: p. 210).
Today’s professionalism in many vocations, implying an ethic of service rather than the unrestrained pursuit of self-interest, is one facet of this larger picture . . . Even the pressures that some professionals resist–toward socialization of risk in payment of professional services and toward the substitution of social-work philosophy and techniques for traditional law enforcement and trial by adversaries for the settlement of some kinds of social problems–are concomitants of these general social changes . . . Corinne Lathrob Gilb Hidden Hierchies, (N.Y., Harper & Row, 1976: p. 235).
The reasons for the entry of defense attorneys into the criminal justice system must elicit some comment. Lawyers with more than fifteen years’ experience have a high degree of professionalism. They did not enter the profession to make fortunes and the reward structure is typically non-monetary.
…One important aspect of the professional ethic in the twentieth century is an emphasis on dedication to truth, justice or some other abstraction that helps to justify the profession’s special position of authority and to reinforce it by reassuring the public about the profession’s goals and boundaries. Gilb (N.Y., Harper & Row, 1976: p. 54)
With the changes, the reward system has diminished. Additionally, rather than trying cases, the defense attorneys are forced to participate in administration which is perceived to be adverse to the client’s interest. They are dissatisfied with the formalization and feel alienated and powerless. Additionally, the reward system of recognition by colleagues, feeling of accomplishment, and the feeling of doing something useful for others no longer exists. In fact many defense lawyers chafe at being mocked by the public in the rounds of lawyer jokes. What lawyers view with professional pride is viewed as wrong and criminal by the public. They are vilified, not viewed as white knights for the underpriveleged.
Procedure, and formality are key features of present-day Western legal institutions.
There is a conflict between that formality and substantive justice.
“The more training a person has, the more likely to feel alienation under those conditions that produce it for groups of professionals as a whole.” Hall, (1977: p. 167). Lawyers are trained to try cases, not administrate.
“For professionals, the greater the degree of formalization in the organization, the greater the alienation from work.” Hall, (1977: p. 167). The court system, to cope with the volume is becoming increasingly formal. Very little is done in the judges’ chambers, and most matters are taken up in open court, leading to rigidity.
“Rigidity may lead to strong feelings of work dissatisfaction.” … ‘Professionals have their own standards and tend to view an organization’s standards as redundant or less valid.’ (Citing Kahn, et. al., 1964) Hall, (1977: p. 167).
Judges would prefer that all criminal cases be handled by the public defender’s office. The public defenders are assigned to a particular courtroom and don’t have the scheduling problems as do private attorneys. They have to administer to manage their case loads, and they tend to get along better with the prosecutors or get moved. They view their jobs as protecting rights rather than advocating for a client or cause.
The relationship between the public defender and the prosecutor is much closer than that of the defender and his client. The public defender shares with the prosecutor the presumption that defendants are guilty . . . Rather than defending the interests of such persons, the defender’s office essentially represents one cog in the machinery by which charged individuals are “processed . . . ” Schur (1968: p. 160).
“The legal system can’t do all things for all people . . . Institutionalizing of both law and order strains the system.” Schur (1968: p. 160) This strain is relieved by discouraging timeconsuming private lawyers from participating and encouraging the use of public defenders.
There is a difference in goals between judges and defense attorneys. There is a difference in power and in reward system, but each are professional and desire non-economic rewards to various degrees. Both parties are dissatisfied with their jobs and are in conflict with each other. However the conflict is due to the changing of the roles of the parties and in the goals and purposes of the court system, from hearing and deciding cases to administrating cases. Rather than comprehend that they have both lost power to the prosecutor’s office and that the legal system is changing from an accusatorial to inquisitorial system, the conflict is manifested by friction between judge and private attorney.
The participants to the conflict that arises in the general jurisdiction criminal trial courts are the District (County) (State’s) Attorney, or prosecutor, Private or Public Defense Counsel, or defenders, the Judge, The Court Clerk, The Judicial Administrator, Witnesses and Law Enforcement Agents.
Prosecutors may be either elected or appointed, but most often are elected. Their stated purpose is to represent the public in the political jurisdiction. In either event, they are public officials, paid by the State and are part of a political system, even if appointed since they are appointed by the party in power. As such, they are attuned to the politics of the geographical area which they serve and to the desires of their constituencies, since most prosecutors desire to stay in office. In systems where the prosecutors are elected, they are responsive to the decision makers of the party in power. In elective jurisdictions, the prosecutors theoretically formulate their policies on the desire of the electorate. However, the largest block of constituent voters that have an interest in the prosecutor’s office is the law enforcement block. Consequently, law enforcement officials have a greater say in policy than have other systems. In either type of system, the prosecutor relies on publicity, ordinarily from the media to maintain his political power.
At common law, the prosecutor represented the Sovereign. In the United States, all the people are the sovereign and prosecutors often claim to represent the “people.@
In many jurisdictions, the criminal case is initiated in the name of the People of the State of _______, vs. The Defendant. In other jurisdictions, prosecutions are brought in the name of the State or The United States of America. As a practical matter, prosecutors try to represent their perceived constituencies, such as law enforcement groups, victims, of political party. As a result, the conduct of a prosecutor or the policies of the Prosecutor’s office is often not in the best interest of the society, state or political entity. They often only serve the career of the prosecutor.
Prosecutors make decisions about initiating prosecutions based upon the reading of reports or interviews of investigatory agents. Since they represent a nebulous client, they can make decisions more in the abstract than Defenders. They rarely interview a victim before initiation of a case. Although advice is given sometimes to law enforcement agents, this is not a large part of the role of a prosecutor. Unlike a defense attorney, he cannot be fired or discharged by an angry or dissatisfied police agent or victim. Consequently, pleasing individuals is not the high priority item in the decision-making process that pleasing the public is.
Defenders are privately retained (hired) by the defendant or State paid. These may be attorneys in private practice or employed by a state agency such as a public defender’s office. They represent individuals even though paid by others. Their decisions are based upon what is best for the client and not for the sovereign. They can be fired, sued, and slandered, which affects their capacity to earn a living and their professional standing. They generally make their decisions on to defend by personal interview, reading offense reports and investigating after entering a case or undertaking to defend. Defenders view their constituency as their clientele and the individual clients, although most have concerns for society at large, but not necessarily the State. However, since they have to have a flow of clients or cases, the defense attorney engages in practices that essentially advertise his persona to the public. To attract clients, he does and says things that appeal to a broad segment of the population or customer base.
Judges are appointed or elected. If appointed, it is an appointment by an elected official, or board, although often with the approval of another elected body. They ordinarily don’t directly associate with the litigants. They see their roles as perpetuating the State and acting as the referee between the State and the defendant.
The constitution provides that the Judge be placed between the State and action by the State. For instance, The Fourth Amendment to the U. S. Constitution provides for the approval of a Judge before a search warrant is issued. The Constitution also provides for due process, equal protection of the law, and other constitutional rights for defendants. U. S. Constitution, amendments I, IV, V, VI.
In the last two decades, professional Court Administrators have come into being. They administer the progress of the cases and see to it that the cases proceed through the system. This job was traditionally done by the Court Clerks until the advent of the Court Administrator. Where the Clerk’s Office administers the case flow, the Clerk in charge of docketing and case management is generally a trained court administrator. They collect data and present the results to judges, legislators and other. Consequently, the focus tends to be on numbers rather than quality. Easy convictions or guilty pleas are preferred and sought because the numbers look better to the public.
There are two types of court clerks, the division clerks and the Clerk’s Office. The central administration of the cases is generally administered by the Clerk’s office and each judge’s calendar is kept by the division clerk.
Other participants to the trial process in the criminal justice system are the witnesses and the Law enforcement agents. Their roles are obvious and the conflict that can develop is readily apparent. The participants mentioned appear to have little impact on the conflict between judges and defense attorneys.
The trial judges’ main issue appears to be docket control and speedy trial. Trial judges have told defense attorneys that they should remove themselves from cases if they could not clear a trial date within the court’s speedy trial limit, even if the defendant indicates that he would waive the limit. The courts justify the time compression by claiming that they are protecting a defendant’s right to speedy trial. However, they rush cases, sometimes making it difficult for an attorney to prepare for a case. Some Federal jurisdictions have trials thirty days after arraignment.
Defense attorneys in those situations are ones who are paid a considerable sum to drop other matters or ones whose practices are slow enough that they can deal with the short time. The trend is to appoint public defenders even if a defendant has resources for an attorney for the sake of expediency and moving cases.
Another issue with judges is that defense attorneys speak for their clients when they know that the court has already made a decision, thereby “wasting court time in order to justify their fees.@
There is an overriding value-based issue in the view of the role of courts and the goals of the court system as seen by the judges and attorneys. A judge’s goal is to move cases or administer, whereas the defense attorney’s goal is to defend and advocate for his client and to litigate or resolve the matter in a somewhat favorable manner that appears fair.
The distribution of power is an interest-based issue, with defense attorneys and judges losing and prosecutors gaining. This shift is legislatively defined, and is acquiescing to by most of the parties. However, the consequence of the power shift is to redefine the system from an accusatory system where a defendant is presumed innocent and a trial is held to determine if the sovereign has a right to punish a defendant, to that of an inquisitorial system where the defendant is presumed to have committed a wrong and an inquisition occurs to determine truth or at least the facts.
The attorney interviews were confined to private and public defense attorneys who have participated in the system for more than twenty years, prosecutors, judges, probation officers, law enforcement officials and criminal defendants. The interviews were conducted over a period of several years and were limited to those in the system that devoted more than half their endeavors in the criminal legal system. The interviews were conversational and a questionnaire was not used although an outline or checklist was available. The subjects were not told they were being interviewed but asked in a Rogerian fashion what they thought about the legal system, their jobs and whether or not they were satisfied with their law practices. The interviews were conducted primarily to define the conflict and to isolate particular problems for further definition and debate. Of the defense attorneys interviewed, 90% were confined to a fifty-mile radius and described experiences confined to approximately ten jurisdictions. Ten percent (10%) of the persons interviewed were scattered throughout the United States. The judges, two probation officers and two out of state attorneys were interviewed to test for divergence. This discussion is confined to themes occurring in all the interviews. No measuring instrument was used, but interviews were conducted for the purpose of construction such instruments at a later time.
Common to all participants interviewed was a deep dissatisfaction of the system and the participant’s role in the system. Most defense attorneys were frustrated and constantly expressed a desire to change occupations. The same was noticed with judges with more than ten years on the bench, but with few exceptions, the judges expressed a desire to go into private law practice.
The private lawyers expressed a desire to do other things from truck driving to school teaching. None of the lawyers felt satisfied with practicing law. Most of them would take substantial decreases in income to leave the profession, if some other occupation could be found, however most felt that pressures from family and friends made such a change impossible. Very few had insight to what the problem was and felt that there was no solution.
One third of the lawyers interviewed either quit law practice or concentrated their practice in non-litigation areas after many years as defense attorneys. Avoidance was the most common resolution device used.
The subjects did define the primary areas of conflict. The primary area of conflict was with the legal system itself and with the attorney=s role within the system. They identified conflict with the judges and with prosecutors. Most recognized that conflict with prosecutors was natural to some degree, but felt the conflict was not due to the nature of the prosecutors’ traditional role. Most of the real conflict seemed to be defined in terms of conflict with the judges. Additionally, the conflicts expressed by the probation officers seemed to be defined in terms of conflict with the judges, and not with the attorneys. Most attorneys expressed a belief that there was bias toward the police in the court system. They also believed that they had no part in the court governance and were often viewed as obstructions to the system. They believed that because most judges had not been in “private” practice, they could not appreciate or understand the role or problems of defense attorneys.
The subjects recognized the traditional built in conflict between the participants, but uniformly expressed a sense of frustration with the existing system and claimed it to be significantly different from the one of ten or twenty years past. All participants blamed change and docket crowding as the cause of the conflict and of their dissatisfaction. Secondarily, the majority of the attorneys cited legislation and public attitudes as a cause of their dissatisfaction. An attempt will be made to discuss these significant changes and analyze them in terms of social conflict.
The judges cited private defense attorneys as a cause for their dissatisfaction. Additionally, they cited the appellate courts and workloads. In one instance, public defenders were cited as a cause of conflict. The judges recognized the conflict with the attorneys, and felt that the attorneys were not sympathetic enough to their problems. Most judges preferred working with public defenders to defense attorneys because their courtrooms seemed to function more smoothly with them than with private attorneys. They believed that private attorneys postured in Court to justify their fees to the client. As such, they tend not to give much attention or credence to the defense attorney. They rely on prosecutors with whom they have daily contact as an ally and to keep things going.
Private attorneys felt that the judges were totally ignorant and insensitive to their problems and were selfishly concerned with their dockets to the detriment of the lawyers and the litigants. Some felt the political motivations of the prosecutors were to blame for conflict, but the majority felt that a substantial cause of conflict lies with the legislators. The judges tend to duck issues directing debate to the legislature rather than address a problem and “make waves.’
Probation officers believed that the major cause of conflict was the tremendous increase of case intake and insensitivity of the system to the users of the system. One Federal probation officer stated that
“The system doesn’t care for the individual anymore. We’re screwing people right and left and figuring out ways to screw them more. It’s crazy. No one uses common sense. The system is designing itself for self-fulfilling prophesies. I’m glad I’m retiring in six months.@
“I don’t know why I went to graduate school in corrections. Social theory is the least of the courts’ concern. It’s just numbers. Some of these idiot judges even like the new Federal sentencing guidelines. It takes the heat off them and they can blame everything on the legislatures.”
Another probation officer stated that ” . . . the judges should budget a public relations campaign like the Justice Department and the Lawmakers do.”
Most probation officers felt frustrated and viewed themselves as mere paper shufflers or clerks. They feel powerless and believe that the judges are more concerned with moving paper than with the needs of the users of the system. They also believe that they cannot do their jobs effectively and do not get the necessary support from the judges. They can’t do any counseling, although some admitted that they could occasionally ” . . . sneak some in.” Several expressed concern that all the power was now in the executive, and that the doctrine of separation of powers was meaningless. All agreed that they were not doing what they were trained to do. Most resolved the conflict by writing their reports to reflect the thinking of their judges and ignoring their instincts and training.
Analyzing the conflict of judges with the other participants in the system is more complex. They have a natural conflict with the legislature over pay matters and with the appellate courts over docket control and precedent. These conflicts seem to have grown in twenty years, but judges didn’t seem to have much insight into the nature of their conflict or the cause of the conflict, although most felt that the cause of the conflict was private defense counsel. The biggest strain on the system seems to be in the area of docket control. Harsher sentences, increase in enforcement emphasis, restricting of sentencing alternatives and the push for speedy trials appear at first to cause the strain. Judges feel powerless and overwhelmed and believe that the private attorneys are insensitive to their problems. Most prefer not to have private attorneys in their courtrooms.
Private attorneys practice in front of more than one judge and typically in more than one jurisdiction. Consequently, scheduling has to be adjusted. Sometimes, a case isn’t ready to proceed, the defendant doesn’t show up or the lawyer has a schedule conflict. The public defender typically practices in front of a particular court or at least only in that jurisdiction. He is typically in the courtroom on any given day and scheduling is not much of a problem. The same holds true with prosecutors. Judges appear to have adjusted to the myriad of changes in laws, procedures and rules with very little concern or analysis and typically see their conflicts as only with attorneys.
They view attorney’s use of juries and the voir dire examination as a waste of court time. Likewise, they view motions and preliminary hearings in the same way. Some judges believe that defense attorneys argue motions and have preliminary hearings to “justify their fees.” They also believe that most defense attorneys make more money than they do with far less problems. These views are
probably distorted somewhat from that of the judiciary as a whole because no judge with significant private law experience prior to becoming a judge was interviewed.
One judge, in a conference with a public defender and a private attorney discussing expediting cases stated that he believed that the only reason private attorneys spoke at preliminary court appearances was ” . . . to impress clients and justify their fees.@ The public defender’s office doesn’t take up that much Court time.”
The defense attorney in that conversation stated to the judge that he talked for five to ten minutes at a sentencing where a substantial sentence was recommended by the probation officer. He expressed the belief that defendants represented by the public defender’s office experienced so much conflict with their clients because the defendants believed the public defenders weren’t talking enough on behalf of clients in court.
Defense attorneys with more than twenty years’ experience are greatly unhappy and dissatisfied with practicing law in the criminal courts. They see their main conflict with the judges first, the clients second and the prosecutors third. Typical of comments of defense attorneys was “it bad enough we have to fight the District Attorneys, we now have to fight the damn judges and our clients too.@ Most of the conflict appears at first to be confined to docket control, but upon probing and further questioning, it is apparent that the lawyers view the rapid change as the basic source of conflict. In both instances the judges are deemed to be the causes.
The positions of the judges and lawyers seem to be polarized. Both sides don’t think there is much hope for change. Most of the attorney’s believed that judges should be elected and not appointed. They saw the judges as arrogant and non-caring. Not enough judges were interviewed to comment on the way generally in which they viewed defense attorneys, but observations of judges in the courtroom justifies the suspicion that the judges prefer working with public defenders.
Most of the comments about judges were typified by the statement of a former U. S. attorney in practice for forty years, “The selection of Judges is too important to leave up to the politicians.” Another commented “When they said that the judges should be on the bench more to get that one pay raise in 1970, they made a mistake. It used to be, if you had a problem, you could find a judge in chambers and discuss it informally in chambers with the opponent. Now, you file a motion, notice it for setting, set a time and argue in open court. No wonder the courts are backlogged. It takes a half day to ask a two minute question.@
One lawyer with forty years of practice commented, “It’s where they get their judges now. They are younger and from government agencies. They never had to run an office and deal with clients. They are just bureaucrats. Prosecutors don’t have to deal with the people, they deal with cops. They never have to talk to the wife or the kids of someone arrested.”
Another defense attorney commented, ” They know they are screwing people. Why else are they so uptight about security in the courthouses. You didn’t see that type of security in the radical days.”
A major concern of the defense attorneys is in the area of fairness. They believe that sentencing is too harsh and not in the public’s or their client’s best interest. They believe that the judges care more about moving their dockets and placating public opinion than they do about the concept of justice. They also believe that the judges should do something positive about sentencing and are not. The following comments are typical.
“They don’t care if a person is not guilty, he can plea bargain anyway and keep the traffic moving.”
“A lot more people will go to jail to jail before the public wakes up”
“What the court system needs is quality control. We manufacture justice in this country like we make everything else”
“There is no justice. People now equate justice with punishment, not fairness.”
“ Judges should be paid about the same as a GS 12. They’re just glorified clerks. They know better, but they don’t have the time or inclination to educate the public. It’s easier to play to the public’s prejudices.”
“All judges care about is the moving of cases.
[Mr. Chief Justice] “Berger calls trial lawyers incompetent. At least they have read the constitution. He thinks everyone not out to abolish the constitution is incompetent.”
“They ought to make those fucking judges be in practice before becoming judges. They don’t learn anything about people in the DA’s office.”
“I got out. The judges are fascists. Most people don’t deserve jail. I knew that as a young prosecutor. The system has lost its ability to think or care. It isn’t rational. Everyone is treated the same. Situations, motive and intent are meaningless. Berger talks about competency of trial lawyers. Someone should check his competency. He claims everyone is incompetent that won’t go along with or questions his program.”
“It’s worse in Jefferson County. All the judges were prosecutors. The judges can’t distinguish between serious crime and non-serious.”
“Judges got no wisdom. They don’t have soul. You can’t represent a client adequately under the pressure to move cases along. You cut corners. The judges believe you are going to plea bargain anyway, so why not do it now. They never had to deal with clients.”
“What do you do to those judges at Vail? Most guys are pretty good guys until they attend those judges conferences. What do they do, lock them in a room and give them prick shots?”
The defense attorneys expressed general frustration and dissatisfaction with their chosen profession and expressed a desire to do something else. Some of the comments were:
“There is no dignity in practicing law anymore.”
“Law isn’t as much fun. Intent has changed, evidence has changed, the docket rules the courts, the DA’s have the power and the judges let them get by with it because it speeds things up.”
“I haven’t tried a criminal case in years. Who wants to be treated the way they treat you guys in criminal court?”
“he courts are crazy. The lawyers don’t know enough to see they are in trouble. I’d like to do something else. It’s so chicken shit. They raise filing fees and won’t mail copies unless you provide them with a self-addressed envelope. They charge you for Xeroxing. They are petty.”
“Law is no fun anymore. They blame lawyers for Watergate. It wasn’t lawyers, it was the politicians. They just happened to be lawyers or have law degrees. The ‘silk’ shirts at the ABA thought they would be embarrassed at the country club, so they led the attack on the trial lawyers.”
“I wish I could do something else, but I went to school a long time ago and I’m too old to change. If I were twenty years younger, I could be a hooker.”
“I just want to make enough money to get out of law and maybe emigrate to another country. The judges have no wisdom. If I take a criminal case, I get lots of money. It’s worth it for all the shit you have to put up with. Just make a lot of money and quit. It isn’t worth the effort to care and to fight it. They don’t care anyway.”
“There isn’t any dignity in practicing law anymore. Look at the new guys coming up. Would you want them advocating your case? There isn’t time for advocacy. If you take too much time, the judges find a way to punish you or your client.”
“I want to buy a big rig and head out across country. I can’t stand it anymore.”
“I’d like to quit. I did for a while. The judges think the answer is more courts and judges. It really is about solving poverty and being selective in prosecution. They should only prosecute the dangerous ones. The changes in ten years make it impossible to advise clients. You got to tell them that there is almost no chance. Then they wonder why they hired you.”
“There isn’t any fun in law practice. The rules have killed it. When I was a DA, I would never dreamed that the office would have such power. Maybe you can help a few people and it’s worth it. I don’t know.”
“I couldn’t stand it. I like being a bell hop now. Judges call me sir now. The law has changed for the worse, my man.”
“I would do anything to get out. It just isn’t any fun. All I do nowadays is fight. Fight with the prosecutors, the judges, the clients; it just isn’t worth it.”
From the comments, it would initially appear that the lawyers believe the judges are insensitive and do not appreciate the problems of lawyers. It would also appear that there is a lot of what is popularly called burn out. This is not the case. The cause of the frustration and dissatisfaction is rooted in the power shift to the prosecutors, and in the subtle change from a system once based upon the common law to that of one based on civil law principals. In the present system, the prosecutors make the majority of decisions. These typically are young without much experience in life. With changes in the last several years, unfairness is perceived by the attorneys causing frustration and a feeling of hopelessness. Since they feel powerless, they are contemplating leaving the profession as a means of resolution.
One recurrent theme with the shift of power to prosecutors was the theme that there ought to be some quality control on prosecutions. They felt that much of the crowding in the courts could be alleviated by more selectivity. Some of the comments support this conclusion.
“The prosecution has all the power. It’s out of control. There aren’t any rights anymore. Since they changed criminal intent, there is no difference between a crime and a tort.”
“What the court system needs is quality control. We manufacture justice in this country like we make everything else. There is no justice…(it is) equat(ed) with punishment, not fairness.”
They are trying to jail everyone, then have hearings to see for how long. They call them bond hearings, preliminary hearings, guilty pleas and sentencing hearings. If it were up to the prosecutes, people would be in jail forever.
“They don’t need more prisons, they should be more selective in prosecution. Right now it’s a con on the public. They prosecute a lot of numbers and the people think the cops and the DA’s are doing their jobs. The legislators are all whores. They think they can buy votes by law and order. Soon the majority will be criminals or related to criminals, then thy will be voted out and never figure out why.”
“It’s John Mithcell’s dream come true. More punishment, abolition of the Constitution, beating up on defense attorneys, RICO, preventive detention, absolute power to the prosecution. He got convicted under his own plan, but he got the change he wanted.”
“They can’t prosecute everyone. Where are they going to put them. The only the judges and prosecutors talk about is speedy trial. I never had a defendant want a speedy trial. The prosecutors and judges do. It’s Orwellian double talk.”
The nature of the comments are not consistent with burn out. They indicate that the lawyers interviewed are concerned with change and with policies that they believe that they can’t deal with. The conflict is really with the organization and the organizational structure and functions than with general job dissatisfaction associated with burn out.
There is a great degree of stereotyping occurring in the conflict as indicated by their comments. The lawyers’ comments weren’t directed at particular judges, but judges in general. Since Watgergate, lawyer jokes, demeaning lawyers abound. Because of the different continuing education, different goals, different way in which the actors view the purpose of the court system, and inaccessibility, communication between the parties is not likely to improve, but will worsen. Some sort of basis of communication is necessary whereby the principal parties can be coordinated in their goals and values. Currently, the situation puts most of the power in Prosecutors. Any person or group perceived as adverse to the political ends of the prosecutor is viewed as the enemy. War is the mindset, not corroborative interaction for the purpose of finding some mutual definition of purpose, method, goals, and procedures collectively known as “justice.” The power shift has changed the commonality of common law to the dictatorial rule of the powerful and strongest. The result is antithecal to the principles and beliefs of our heritage and history.