Justice delayed: Prosecutors and judges point fingers at each other

Judges and prosecutors are coming under increasing scrutiny as the criminal justice system reacts to a crushing backlog of murder cases in Stanislaus County, believed to be the worst in California.

A new Modesto Bee analysis appears to show a correlation between individual judges who conduct relatively few trials and murder cases stacking up in their courtrooms.

A judge supervising others who preside over murder trials blames part of the problem on no-shows at arraignments by attorneys on either side, an apparent procedural anomaly in California justice. The local arraignment court judge agrees that a change could ease pressure on the entire system, and the district attorney and public defender said they’re willing to try – if given the money to hire more attorneys.

Judge Linda McFadden, who oversees eight Stanislaus criminal courtrooms, including her own, said District Attorney Birgit Fladager’s reluctance to negotiate deals adds to the growing caseload burden. Fladager responded by releasing data suggesting that judges are initiating continuances in trial proceedings – a major factor in lengthy cases – at record pace.

Despite their differences, the players agree that the unnerving backlog takes a toll on all of society.

Taxpayers pick up logjam tab

The 144 inmates awaiting trial in murder cases are costing taxpayers more than $5 million a year just to put them up in Stanislaus jails, according to updated cost estimates provided by Sheriff Adam Christianson. His custodial deputies release some inmates early to make room for those accused of more serious crimes in the jails, where only 28 percent are serving sentences and 72 percent are waiting for their trials.

“While I respect a defendant’s right to a fair trial and due process, housing defendants (in murder cases) for years while the court agrees to repeated and unnecessary delays in seeking justice is absolutely a disservice to the victim, the victim’s family and the taxpayer,” Christianson said.

Stanislaus’ murder case backlog far outpaces others in California, according to The Bee’s ongoing analysis. The per-capita local mark is three times the average of others in 51 counties responding to The Bee’s requests for data.

“I agree: A delay in case processing is a delay in justice,” said McFadden in a lengthy interview.

She and Presiding Judge Marie Silveira say they and six other Stanislaus judges trying murder cases are hardworking.

Internal court report: Some judges work quickly; others, not so much

An internal report conducted in May 2006 notes that some judges are more efficient than others, and The Bee’s new analysis of individual courtrooms over several years bears that out.

For example, Judge Scott Steffen has spent an average of 65 days in trial each year for the past nine years, while Judge Nancy Ashley averaged 36 days in the identical time period. She presided over only eight days of trial in 2013, compared with Steffen’s 81.

Both have assignments that tend toward multiple-defendant cases, which can be vulnerable to delays because more attorneys often are involved.

By another measure, Judge Thomas Zeff has been conducting more than 14 trials per year, on average – more than double Ashley’s average of five per year. Last year, she did two, compared with Zeff’s 12.

All eight judges were provided an opportunity to comment. McFadden spoke at length, Silveira granted a brief interview for a previous report two weeks ago and the rest did not respond.

Asked about Zeff’s work ethic, McFadden said, “He has a reputation for working hard, and he tends to get things done.”

Without naming names, she said judge inefficiency may be “something we need to look at,” while defending the eight-judge criminal bench in general.

“Everyone has a different way of approaching cases, and I don’t know that one way is best,” McFadden said. “Some have different philosophies on how to handle parties.

“It’s easy to look at statistics and say they mean something,” she continued. “Sometimes the numbers are not the entire story.”

Trial court judges in California earn $189,041 per year. That’s fifth highest among the 50 states, the National Center for State Courts said last year, but 21st when adjusted for cost of living.

Judge airs idea for easing burden on courts

Reflecting on other potential reasons for Stanislaus’ alarming backlog of murder cases, McFadden noted that most other medium and large counties, if not all, staff arraignment courts with representatives from the District Attorney’s and Public Defender’s offices. That’s true, said criminal justice workers contacted in a spot-check of several California counties.

The arraignment is a defender’s first court appearance and provides a venue for entering a plea. If the accused is in custody, bail amounts can be argued; if out, the judge may issue an order to stay away from someone believed to have been a victim. If a defendant can’t afford an attorney, the judge may appoint one at taxpayers’ expense.

In other counties, simple, straightforward cases can be quickly resolved because prosecution and defense attorneys always attend arraignments.

“But not here,” said Judge Ruben Villalobos, who presides over Stanislaus’ arraignment court. He previously worked six years in the Public Defender’s Office, and eight as a private defense attorney working in several counties.

“It’s the only place I’ve ever practiced where attorneys are not present at arraignment,” Villalobos said. At statewide training sessions and conferences, judges from elsewhere “are incredulous to hear that we don’t have regularly assigned counsel at arraignments. It goes against the way justice is conducted statewide.”

Soon after ascending to the bench in January, Villalobos sought an opinion on the matter from the California Judges Association’s ethics committee. He was advised to continue but warned not to resolve a case with only one side present.

Stanislaus anomaly could endanger the innocent

“It’s problematic, though,” said the judge, who often is prevented from issuing an order protecting someone who may have been a victim without relevant information from a prosecutor. “People could be at risk,” he said.

The tradition of not staffing arraignments dates at least to Donald Stahl, who was district attorney from 1972 to 1996, and perhaps further, several long-timers said. Some surmised that some past decision-makers hoped to make the process more efficient by removing attorneys from the equation, with results backfiring over time.

A change would not directly affect the murder caseload, because such crimes are not easily resolved and are sent straight to one of the eight criminal courtrooms for arraignment, bypassing Villalobos’ courtroom. But concluding up to 10 percent of his cases at the earliest opportunity could ease the burden on the rest of the court system, he said, and McFadden agreed.

“In this county, cases are not resolving at arraignment so (the rest of us) have more cases to deal with,” she said.

“But it’s not for me to say how they run their offices,” Villalobos added.

Periodically, he calls the District Attorney’s and Public Defender’s offices to come for certain cases, and both have responded by sending lawyers. Both said they would be willing to experiment with staffing the arraignment court but can’t spare already stretched attorneys.

All law enforcement agencies suffered cutbacks in the recession: Fladager lost 19 workers, and Public Defender Tim Bazar lost 11. Both have struggled since to rebuild, helped by county supervisors’ “top priority” promise to add $2 million each year for the next four years to the combined budgets for all public safety departments.

Some county supervisors have publicly questioned Stanislaus courts’ embarrassing backlog, and have begun meeting with Silveira and other key players in search of solutions.

Both sides: ‘We’re stretched too thin’

Fladager has 47 prosecutors and says she needs at least 52. Given an opportunity to hire more, she would prefer assigning them to prosecute homicides, gang cases and domestic violence, she said. She has blamed the murder case pileup on the courts’ 2005 procedural change in how all cases are routed to courtrooms, a notion court administrators say is nonsense.

“But I am open to any options that will help speed (things) up,” Fladager said.

Bazar acknowledged that his counterparts in other counties believe that staffing arraignments is more efficient, but said he, too, suffers from not enough attorneys.

“I suppose the easiest way to tell is to try it out,” he said. “But I would instruct them that they’re not there just to dispose of cases. We’re there to make sure we get a good result for the client. We’re not going to settle just so we can say we got rid of 100 cases this week and get a gold star.”

A change might increase efficiency, said professor Michael Vitiello, who specializes in criminal cases and court procedure at the University of the Pacific’s McGeorge School of Law in Sacramento. “Our criminal justice system works by plea bargaining,” he said. “Because the majority is resolved by pleas, the sooner you have the involvement of the DA and PD, the more likely you’ll have a smooth-running system.”

Longtime Modesto defense attorney Ernie Spokes estimated up to 25 percent of cases could be nipped in the bud with arraignment staffing. But that would require a culture change, he said, for prosecutors who would have to reveal evidence at the onset, “and we never, never get all the discovery in the first bag,” he said.

The courthouse is understaffed as well, needing 283 employees but having only enough money for 240, court executive officer Rebecca Fleming has said. A Judicial Council of California formula lists Stanislaus courts fourth from last for adequate funding among California’s 58 counties.

Tough-on-crime persona hampers plea deals, judge says

McFadden, a seasoned Stanislaus prosecutor before becoming a judge in 2002, said Fladager’s style, and community culture, may assume some blame for the murder case logjam.

“Stanislaus County has always had a reputation for being less wiling to resolve,” McFadden said. “To some extent, the community has wanted the DA to be more conservative. That can play a factor in how cases move through the system.”

Don Lundy was court executive officer when the change from master to direct calendaring was implemented in 2005, and since has retired. In a recent interview, he stridently defended the switch and said “our county is notorious for charging heavy” and “overcharging.”

“When the DA says direct calendaring is the big problem, it just doesn’t ring true,” Lundy said. Other counties with similar systems that mentored Stanislaus in its change “all told us, ‘The DA’s Office will not like this; they bucked us and they will buck you,’ ” he said. “We thought it was interesting because the DA’s Office didn’t like it from Day 1 and put their heels in the sand.”

Fladager said, “I don’t think we’re any different” from other counties. “We are more than willing to take cases to trial to fight for an appropriate sentence.”

Most cases do settle before trial, in all counties, including here, she added. She said pressure from Stanislaus judges to negotiate “has seemed to grow with time,” adding that “judges will often undercut an offer by the prosecutor in order to get a case to settle.”

Fladager released an accounting showing which parties were responsible for 530,352 continuances in Stanislaus courts in the past 15 years. As expected, a majority – 72 percent – were requested by defense attorneys; delays are generally perceived to help a defendant as witness testimony ages.

Judges adding to delays, DA’s numbers indicate

A Bee analysis of Fladager’s numbers reveals a sharp increase in defense-requested continuances – 76 percent – in the past decade, as well as a significant 59 percent rise in delays agreed to by both sides. Continuances initiated by prosecutors consistently have remained at the same level – about 2.6 percent of the total, with no increase in 10 years.

But delays attributed to judges have increased 21 percent in the past decade and now account for more than 19 percent of all continuances, according to Fladager’s data.

Speaking of justice in general and not as a response to Fladager, McFadden said judges conscientiously strive for fairness to all sides. Rushing things too fast can result in reversals on appeal, she noted.

“We’re doing everything we can think of to be more efficient,” McFadden said. “I think we all need to be open to reviewing what we’re doing. But there are reasons for resolving cases the way they do, and it’s not because we’re lazy. When I was a (deputy) DA, a girl told me she would kill herself if her daddy went to jail. There are so many variables in the criminal justice system.

“But it really hurts citizens in the community when cases are delayed,” she added. “That’s not fair to anyone.”

This story was originally published October 10, 2015 at 6:44 PM with the headline "Justice delayed: Prosecutors and judges point fingers at each other."