by Mike Nichols
East Lansing attorney
Michigan’s justice system focuses on the wrong data. Let’s make sure all data is turned over in every case — not just statistics on how quickly we can push cases through the system.
The use of arbitrary deadlines to measure the performance of judges leaves us with arbitrary justice.
The Administrative Order 2011-13 says that judges at the trial court level are to manage case flow. However, the Order puts “guidelines” on what managing case flow means. It directs district court judges to resolve misdemeanor cases within 63 days of the first appearance and 100 percent within 126 days. For felony cases, 80 percent of all preliminary examinations are to be concluded within 14 days of arraignment and 100 percent within 28 days.
Let’s say, for example, I have a client charged with drunk driving. The accused faces two significant collateral consequences: the loss of his license to sell securities and the loss of his ability to enter Canada to meet with clients.
The evidence is largely a blood draw. I send a request to the Michigan State Police Lab invoking the Freedom of Information Act. The lab has 5 days to give itself another 10 days to fulfill my request. Therefore the lab can take even more time despite the FOIA deadlines. The department can tell me that it needs a check for a down payment and once they get the check, then the information will actually be mailed to me.
My recourse is to sue the Michigan State Police for violating the deadlines of the FOIA. However, if the public body gives me the information but gives it to me late, what good does it do my client? If a judge insists the
trial will be held within 63 days of the arraignment then my client is out of luck.
Remember, under People v Greenfield, 271 Mich App 442 (2006), there is no right to discovery in district court. A party seeking a discovery order must show good cause. I will most likely never have the ability to look at critical data to determine if there are any issues with the manner in which the blood analysis was performed in my client’s case so that I can file a motion to exclude. I may not even have the data before the trial is held if the judge treats the guidelines as standards, which should be adhered to with strict compliance.
The Order also contains some language that gives the judges wide discretion to manage within the “guidelines.” It says: “the judiciary must balance the rights and interests of individual litigants, the limited resources of the judicial branch and other participants in the justice system, and the interests of the citizens of this state in having an effective, fair, and efficient system of justice.” AO 2011-13. The order goes on to cite to: “...
the interests of the citizens of this state in having an effective, fair and efficient system of justice.” AO 2011-13.
Beginning in 2013, the Supreme Court will use performance measures to ostensibly allow for the public to hold judges’ feet to the fire for not expediting cases. What about the “effective, fair and efficient system of justice"? If the order said “effective or fair or efficient” then I could see the point of emphasizing the rocket docket approach to quality assurance in our courts. How many people would rather say that they had the ability to put their best possible case forward in court, win or lose, than say: “my case was decided within 2 months of my first appearance before a judge.”
An example of balancing rights is the Republic of Texas. Yes I said Texas. In the lone star state, judges require the labs to produce certain data. There is a standing discovery order so everyone knows what to expect. A copy of that standing discovery order can be found at www.nicholslawyers.com/links and is thanks to attorneys Justin McShane of Pennsylvania and Josh Lee of Oklahoma as well as Dr. Lee N. Polite of Chicago. These gentlemen gave their time to educate judges in Texas. The standing order for discovery is the result.
Time is less important than an informed decision, whether it is a client’s decision to plead guilty or a jury’s decision about proof beyond a reasonable doubt. A more important dashboard report is how much information was made available in a reasonable amount of time before people had to make important decisions that affect their own lives or the lives of others.
A similar standing discovery order would not be a burden on the Michigan State Police lab. This data is already available at the lab — the lab staff merely needs to print and or copy information that is already supposed to be generated. A standing order would be one small step to a uniform system of due process that helps people accused of crimes make informed decisions and expedites the information process by helping the people making judgment calls with data and not hunches in a hurry.
Mike Nichols of Nichols Law Firm specializes in litigation in complex criminal matters, especially alcohol and drug offenses and the defense of those charged with drunk driving. Nichols authored the Michigan OWI Handbook by West Publishing.
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