Friday, June 11, 2010

Clearing the Backlog

Read about how our Court is innovating ways to improve access to justice and enhance public safety by resolving older cases.

Friday, June 11, 2010

Fulton clears 239 backlogged cases

Federally funded program helps save money and resolve cases that have been stalled for at least one year

By Greg Land, Staff Reporter

In a near-empty Fulton County courtroom, Northeastern Circuit Senior Judge John E. Girardeau listened attentively as Public Defender Richard W. Marks summed up his case: no 911 tapes, no "independent" witnesses—true, the assault victim had been photographed with bruises on her face, but she may have inflicted the injuries to herself in order to frame her boyfriend, to "pay him back" for cheating on her.

Rising to deliver his own closing remarks, Fulton County Assistant District Attorney David J. Studdard dismissed Marks' arguments as "preposterous" and expressed astonishment that his opponent could make them with a straight face.

Girardeau then issued his instructions to the jury, sending them out to deliberate as one more of the county's backlogged cases ground toward an end.

One of eight senior judges assigned to the Superior Court's Backlog Reduction Program, Girardeau had first become involved in State v. Stewart just two days earlier. Pretrial motions, plea negotiations and witness issues had all been ironed out earlier.

"When they say it's scheduled for trial week, you can count on it being ready for trial," said Girardeau, who took senior status in 2005.

"That's different from a judge handling a regular calendar, where there often other things that can cause delays," he said.

Since last September, the program has led to resolution of 239 complex felony cases that had left nearly 189 criminal defendants languishing in the Fulton County Jail for more than a year—often much longer than that, according to Fulton County Superior Court statistics.

Funded by $1.2 million in federal stimulus money, the program has churned through the backlog mainly through plea deals, with the toughest cases going to trial before designated teams of prosecutors, defense attorneys, judges and support staff.

The cumulative total for the amount of time those defendants spent in jail before trial: 83,294 days, or more than 228 years, according to the court.

"These are people who have been sitting in jail at a cost of $72 a day," said Fulton County Superior Court Senior Judge Stephanie B. Manis, "while I understand it costs about $40 a day to keep them in state prison." She was citing data from Fulton County Sheriff Theodore "Ted" Jackson.

While saving the county taxpayers money by moving the cases is important, noted Manis, it's also important to resolve the cases in the interest of justice: There have been some not-guilty verdicts, and several of the cases—mostly those involving lower mandatory minimum sentences or lower-level felonies—have been dead-docketed.

Manis has been overseeing the program since its inception, and before that had been working on another backlog case project.

The cases, some of which involve defendants who have been jailed since 2006, fall into four categories:


mandatory plus, in which convictions on charges including aggravated child molestation, aggravated sexual battery, aggravated sodomy, kidnapping with bodily injury, kidnapping a victim under 14 years of age and rape are punishable by a mandatory minimum 25 years in prison;

mandatory, in which convictions for armed robbery, hijacking, kidnapping, trafficking and offenses that require inclusion upon Georgia's sex offender registry are punishable by a mandatory minimum 10 years in prison; and

other, which includes offenses such as aggravated assault and aggravated battery, punishable by one to 20 years in prison, and child molestation, punishable by five to 20 years, among others.

Manis said several factors contribute to these "tough to resolve" cases.

"I think you have a higher number of cases with defendants with mental health issues," she said. "There are a large number of crimes against women and children, and a larger number of cases with the high mandatory sentences."

As the General Assembly has steadily increased such sentences and the number of crimes to which they apply, she said, defendants are more likely to roll the dice on a jury trial than to accept a plea.

"With these 25- and 30-year sentences, there's much less advantage to someone going on the record and expressing remorse," she said. "We predict about 80 percent will go to trial."

Other reasons for the backlog involve cases with multiple defendants and attorneys, cases that are on appeal or those that have already resulted in a mistrial. But Manis said the most common reason cited for the dust-gathering cases is "court congestion."

Manis has drawn upon several years' worth of a court consultant's recommendations for criminal case management to put together her own informal bench book and recommendations for the lawyers, judges and staff who work the backlog cases.

She has so far relegated the actual trials to the other judges, busying herself with reviewing cases, hearing motions and conducting meetings, disposing of the cases she can and getting the others ready for trial so a judge can simply walk into court and begin voir dire.

"I talk to everybody," she said, telling the backlog defendants and the victims, "it's taking a long time, and we need move this case along."

The Georgia Legislature has slashed most state funding for senior judges, and Superior Court Administrator Judith Cramer credits officials in Fulton municipalities for letting some of their own federal funds be used for the project.

"It wouldn't have been possible without the chiefs of police, city managers and council members of the Fulton County cities," said Cramer, explaining that the funds came from a federal Justice Assistance Grant to the cities last year.

"The money was to be shared with law enforcement. I met with a group of [city officials] and asked if they'd give me some of their money," said Cramer.

While funds have been made available nationwide to hire more police officers, "judges, prosecutors, public defenders and clerks are often left out of the equation," she said. "But the more boots on the ground, the more arrests are made."

Cramer likened the resulting surge in arrests on already swollen criminal dockets to a snake eating a large animal.

"You've got this large lump moving through the snake, and what you've got is a snake with indigestion," she said.

With total funding of $1,235,493, the program pays for 20 positions, incuding two senior judges and a three-member staff; two senior prosecutors, two investigators and a legal assistant; three public defenders and a defense investigator; four staff members from the clerk of the Superior Court's office and two staff members from the Sheriff's Department.

The judges' duties rotate between Manis, Girardeau and Senior Fulton County Judges Isaac Jenrette and Elizabeth E. Long; Senior Cobb County Judge Michael Stoddard; and Senior DeKalb County Judges Robert P. Mallis and Anne Workman. Senior Cherokee Circuit Superior Court Judge Tom Pope was originally involved but has since withdrawn, said Manis.

The program was staffed and operational in September, and Cramer said that the funding is projected to run out about mid-December. After that, she's hoping the county, state and/or federal governments might be willing to help keep it alive.

The program gets high marks from those involved.

"One of the great things about the backlog program is that we're able to jump right on our clients' cases," said Marks, the public defender in the case before Girardeau who is one of three Fulton County public defenders assigned to the program.

The ability to have cases prepared by one judge then, if necessary, sent to another for trial enables quick handling, said Marks.

"Our job is to make sure that everything that has to be done is done," he said, "as opposed to just letting them just keep sitting on the shelf."

While the public defenders handle most of the cases, he said, "everything's on a case-by-case basis. In some cases, the original attorney on the case [whether assigned or private], will come to backlog and represent the defendant. In others, the original lawyer will pass his file to us. There's no bright-line rule."

The state has provided seasoned prosecutors, and the cases move as smoothly as can be expected, said Marks.

"No system is perfect," said Marks, "but [the program] does a great job, and the goals set out have been attained."

Prosecutor Studdard deferred comment to Fulton County District Attorney Paul L. Howard Jr., who lauded the program even as he repeated his own complaints about the handling of cases in the Superior Court.

"My assessment is that Judge Manis and the lawyers and the PDs have done an outstanding job," said Howard. "A lot of the credit goes to Judge Manis, who has single-handedly engineered this effort to reduce the backlog cases."

But Howard—who has seen a string of criminal cases fall apart when defendants sought speedy trial dismissals, often in cases in which multiple judges have been assigned a case as the years tick by—said there still need to be courtwide standards for handling cases.

Howard acknowledges that the court has adopted several innovations that have streamlined case-flow to some extent, including specialty courts designed to weed out defendants who have drug and mental health issues; a fast-track program to move lower-level drug and property crime cases swiftly; and a recent pilot program to create separate criminal and civil divisions in the Superior Court.

"This is the fourth backlog effort we have been involved in," said Howard. "Even though this is successful, the number of people in the backlog cases and the number of people in jail remains relatively the same."

Howard called for "an organizational change that will affect the superior, state and magistrate courts, all attacking the same priorities: the numbers of people in jail and awaiting trial.

"Second," he said, "all of the cases in our superior court system should be tried within a certain number of days."

While the criminal justice system in Fulton does suffer from a lack of sufficient resources, he said, "I regard those questions about resources being anecdotal. Unless there is an organizational approach, there will not be overall change. Activity is not the same as achievement."

Cramer, who recently announced she would leave her post, said that one of the goals of the project is to set precisely such goals and caseload standards, which can then be adopted by the entire Fulton County bench.

"The problem now is setting up the system so it doesn't happen again," she said. "We want to develop standards relating to case management. We already have standards for fast-track felonies, but it's much more difficult for the complex cases."

Even so, she noted, there are 19—soon to be 20—elected judges on the Superior Court bench, and "as in any legal culture, there will be specific areas of concern," she said.

"And we simply do not have enough judges, DAs or PDs," she said. "It's a good program, but it won't solve the problem. We have 19 judges now; we need 32 just to do the job."

Fulton County Superior Court Chief Judge Cynthia D. Wright said the court has requested $140,000 in additional funds from the county to continue the program. The request was among several from the county's justice system that were removed from the Fulton County Commission's June 2 agenda; according to Fulton County Superior Court spokesman Don Plummer, it will again be on the agenda for the June 16 meeting.

"We continue to explore other possible avenues for continued funding of the backlog," said Wright via an e-mail.

Howard said he, too, is hoping to keep the program alive.

Lengthy delays are "unfair for defendants, and even more unfair for victims," he said.

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