Can You Throw Money & Time at The Criminal Justice Problem?

I have previously written about the looming catastrophe that is the criminal justice system and the severe backlog that the pandemic has created.

When Daunte Wright was stopped, he had pending armed robbery charges which still had not been resolved (either through trial or a plea) 16 months after the fact. This is fairly normal, as going to trial necessarily takes a really long time to happen. This has been magnified recently due to covid-related pauses in courtroom proceedings. The biggest factor in determining when a trial happens is really whether the defendant is in or out of custody. It took OJ Simpson only 6 months (Jun 94 > Jan 95) to go to trial on a double murder charge and that is fucking blazing fast to me, but he also was in jail the whole time, and could sink money to speed things along.

This can happen in a number of ways. A significant and unappreciated aspect of being a criminal defense attorney is that you often have to launch and coordinate your own investigation. To continue using OJ Simpson as an example, I know that his lawyers wanted to hire private investigators to comb through Chicago right away at the very start of the case. OJ Simpson was accused of murdering his ex and her friend in Los Angeles, so why would Chicago be relevant in any way? That's because Simpson took a plane to Chicago right after the murders the same night. So the investigators would be to scour anyone who went through O'Hare airport and interview anyone who might have possibly seen or interacted with Simpson. And they potentially might testify about his demeanor, and such a demeanor might be seen by a jury as incompatible with someone who just killed two people.

This is objectively a hopeless needle in a haystack endeavor. But if you have millions of dollars to spend, and many years of your life are on the line, why not try? The prosecution will also have crime lab technicians and experts to testify. You can hire your own experts, and you can hire dozens of them until you find one that says what you want, and attorney-client privilege doesn't require you to disclose all the ones that just confirmed the prosecution's interpretation.

Beyond that, you also can have multiple associate attorneys tasked with researching very specific slices of each case. How does video footage get admitted into evidence? The prosecution might argue that all you need is a witness to testify that it is a fair and accurate portrayal of the events in question. But the associate you pay $160k a year just spent 116 billable hours scouring every single court case on the topic of video footage admission in every state and prepared an extensive memorandum on just this one topic. The prosecutor probably barely thought of this point ever becoming a challenge, but hey maybe you'll be successful in convincing a judge that your exquisitely cited challenge on admitting this particular footage is either a valid argument, or sufficient to potentially overturn a conviction on appeal, and maybe you'll get your motion granted.

It's like whittling down a piece of wood, except that each knife stroke costs thousands or millions of dollars to do. You have the money, and there is a lot at stake, so why not?

In contrast to the speed of the OJ trial, it took R Kelly 6 years to go to trial on his child pornography charges, but he was also out of custody and bringing "Ignition (Remix)" to the world.

The right to a speedy trial is heralded as a benefit to the defendant specifically, not the State, but in practice it's often in the best interest of the defendant to delay as much as possible. Lawyers can then take time chasing investigative leads, or research hare-brained legal arguments. Witnesses also drop off, die, forget what happened, or just care a lot less about the criminal conduct (or in R Kelly’s case, the victim becomes of legal age). And in the instances where someone's guilt is inevitable, they might as well enjoy time in the community before turning themselves in to prison later.

In my practice, in custody defendants take priority, obviously. The goal is to get someone released pretrial. Failing that, my attention and time and resources are prioritized in working their cases. Everyone else can wait.

Most criminal cases (~95%) end up in plea deals. The court system is not built to handle defendants demanding a trial, so they quickly get overwhelmed by even a small variance in how many trials happen. Ideally court congestion cannot be used as an excuse to delay trials, but as it stands the case law around 'speedy trial rights' are riddled with exceptions, and it's trivial for a judge to find a good reason to delay a trial.

The part which is painful for me to observe is when defense attorneys ask for a continuance over their own client's objection (this typically only happens when the client is in jail). The client can object all they want and demand a jury trial, but the judge will give great deference to the attorney's request. What also happens in these instances is that the delay will then have to accommodate any planned vacation time. I have seen, on multiple occasions, a trial get bounced around like a pinball because the prosecutor has a 2 week vacation to Mexico, but then after that the defense attorney has a vacation, but then after that a key witness has a scheduled leave of absence, but after that...etc. I literally cannot imagine ever taking a vacation knowing that it would cause my client to spend time in jail; just the thought of it makes me sick to my stomach.