Yesterday I stated the criminal justice system in Massachusetts operates as if it is back 70 or so years ago. Imagine going into a hospital today and seeing that it was operating with the devices used back then. Trying to show how hospital’s operated in the Thirties I wanted to see what state the development of anesthesia had reached at that time. I came across an interesting article on anesthesia. Did you know that “[I]n 1898 the Bayer Company introduced heroin as a substitute for morphine. In the early 1900’s the philanthropic Saint James Society in the U.S. mounts a campaign to supply free samples of heroin through the mail to morphine addicts who are trying give up their habits.”
Just from that I’m sure you get the point that in medicine, dentistry, engineering, and every other field of endeavor things have changed substantially over the last century. That is for most every field except the criminal law field. Other law fields are similarly encumbered but they are beyond this blog. Are we to think that back at the turn of the 20th Century there was nothing we could do to change the way our criminal courts work and they will continue on in perpetuity unchanged?
Here’s how things operate today. Assume my friend Norman K who lives on the South Shore is at the Braintree Mall a couple of weeks before Christmas. He sees a Christmas miracle, a parking spot is opening up close to the front entrance. Coveting it, he patiently waits several minutes while an elderly woman fidgets for a while in her car and manages to extricate her car from the spot. She backs out in such a way that she manages to block the space from Norman.
At that moment coming from the opposite direction is a car being driven by Roger who works in Dedham. Seeing the space, he quickly pulls into it oblivious that Norman has been waiting patiently for it. His mind is on the twenty or so people he still has to get gifts for and he hates to shop so his mood is on the dark side.
Norman jumps out of his car and walks over to Roger as he is getting ready to get out of her car. He tells Roger how he has been waiting. Meanwhile his car is left running in the middle of row blocking others. While Norman and Roger are having words, the other drivers start blowing their horns.
Roger tries to get out of his car but Norman won’t let him. He forces the door into Norman pushing him away but Norman pushes it back. They remain in this one upmanship contest until the cops are drawn by the noise. Unable to quickly settle the situation, they place both men under arrest for disturbing the peace. Peace finally returns to the mall parking lot.
The next day they file complaints against Norman for disturbing the peace and against Roger for disturbing the peace and for assault and battery on Norman when he pushed her door into him.
The men go to court to answer the charges. Neither man has a criminal record. They will not being going to go to jail under any circumstance. They are interviewed by a probation officer about their ability to pay for a lawyer. Norman says he presently unemployed and hasn’t worked for a while. (His wife is quite well off.) Roger works but would rather spend her money on Christmas gifts than lawyers. He says he can’t afford a lawyer. The probation officer being busy tells the judge that both of the defendants can’t afford a lawyer. They both receive court appointed lawyers by the judge.
Roger’s court appointed lawyer putting all his energy into the case goes to the clerk’s office and seeks to get a complaint of false imprisonment against Norman for holding the door when Roger tried to get out and also for assault and battery with a dangerous weapon when he pushed the door back against him.
Norman’s court appointed lawyer is no slouch. He wants the assault and battery complaint against Roger upgraded into an assault and battery by means of a dangerous weapon.
Eventually when the smoke clears, everyone recognizes this is a tempest in a tea pot. After the hearings on the requests for the additional complaints and the usual continuances before those hearings, and after the cases with the charges are continued again, and again, and then continued again sometime nine months or so down the road the men are told by the judge to stay out of trouble and their cases will be dismissed in six months.
I belabored the facts here because this is a typical scenario for most cases. No one seems to ask the question why so much time and energy is spent by the court personnel, why the need for attorneys, and what was accomplished spending all the money on lawyers in this simple matter.
Wouldn’t it have been simpler for the cops to take Norman and Roger from the scene and then release them recognizing that this was an outlier. Why didn’t they settle it? Why did they cause these men and everyone else all this inconvenience?
When I was the Deputy DA in Norfolk County I would meet regularly with the police chiefs. I suggested that things like this be handled at the police level without causing people the inconvenience of going to court or of having to get involved with lawyers. I was not thinking back then of the other time involved in the use of the court facilities and personnel but mainly the cost and inconvenience the public.
The chiefs said it would never work. They did not want to take the responsibility of making those decisions. They wanted to shift it to the courts. I explained they knew their neighborhood and the people in it and suggested it would be better if they who were closer to the scene made these decisions especially for kids with no records or people who would probably not get in trouble again. They would hear nothing of it.
Some suggested they might be sued for false arrest. I explained they could get a release at that time or if they were sued the charges could be brought at a later time. There would be no liability. I explained our office would back them to the fullest if they made those decisions at the police station level.
Other chiefs thought it would cause a problem with their men. The men liked the idea of going to court. It meant overtime pay for some of their men. Some could just show up, have the case continued, and get four hours overtime for less than an hour’s work. (That is one change made from the turn of the 20th Century.)
I was surprised at being rejected time and again when I offered this solution. I recognized the change would not come from the level of the police officer, perhaps it could come from the district attorney level, the judges or the legislature. I’ll write about them tomorrow.