61st Court practices prepared it to comply with Probable Cause Conference changes

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LEGAL NEWS PHOTO  BY CYNTHIA PRCE

by Cynthia Price
Legal News

It may seem counterintuitive that adding a court appearance would speed up the wheels of justice.

That was exactly the intention of bills that became Public Acts 123 and 124 of 2014 when they added a Probable Cause Conference (PCC) before the Preliminary Examination phase in criminal cases before the courts. And because it offers an opportunity to iron out problems in advance, most analysts agree that it saves time, inconvenience and, ultimately, money.

For the 61st District Court, say both Judge David Buter and Clerk of the Court Tanya Todd, this does not represent much of a change from what was already in place. “It really isn’t a whole lot different for us because we had already been doing this — the parties would almost always meet before Preliminary Exam,” Todd said.

Where it does make a difference is in scheduling. The PCC must take place not less than seven nor more than 14 days after the arraignment, and the Preliminary Examination must be held not less than five nor more than seven days after that, unless parties agree to an earlier date for the Preliminary Exam.

Moreover, both of those steps must  be already scheduled by the time of the arraignment. The prosecuting attorney, the defense attorney, and the defendant must attend the PCC, along with the victim witness the prosecutor might bring along and any other witnesses pertinent to determining if a crime has been committed and the probability that the defendant committed it.

While the Preliminary Examination is the phase of the process intended to determine that probability and whether the defendant will be bound over to the circuit court, the Preliminary Exam can be waived. As of the new statute, waiving it also requires the consent of the prosecutor.

At the 61st, the judges are involved every step of the way, according to Judge Buter. Todd adds that they like to keep the same judge throughout a defendant’s court appearances, adding to the scheduling problem.

Setting up that schedule now falls to the team leader of the court’s criminal division, who uses a spreadsheet to determine availability.

However, the judges and staff have put their heads together and developed a new way to cut down on the challenges. Starting in June, the judges will have one day a week where they will hold PCCs. According to Judge Buter, that will be Friday, and two judges will work on 16 cases each.

The judge, who says with a smile that he took on the assignment of responding to the changes because he was “in the wrong place at the wrong time,” acknowledges that this may be difficult at first for the prosecutor’s office and the defense attorneys, but feels it will save them time in the long run.

In addition, Judge Buter explains, the discussion at the PCC may preclude having attorneys, as well as witnesses, come to the court repeatedly.

Todd says that the State Court Administrative Office has been most helpful in supporting courts as they undertake the new process. The SCAO has also given guidance on other changes imposed by the act, which took effect January 1.

These include, for example, allowing a broader range of reports, such as drug field tests, forensic science reports, lab reports, arson reports, and medical reports, into the record at the Preliminary Exam with requiring a foundation to be laid through testimony of the author or other forms of authentication; mandatory acceptance of phone or video testimony except in certain circumstances; allowing the district court judge to conduct circuit court arraignments as provided by court rules; and others.

Most of these are easy for the 61st District Court to accommodate. Todd said that in many cases, defendants waive the circuit court arraignments, and the court was already following some of the other practices as well, so no problems have arisen.

Todd also reports to the SCAO on the timely adjudication of cases, noting cases that have gone unresolved for more than 126 days. She said that where there are delays, the reason is often obvious, such as adjournments to find an appropriate court interpreter for those with language barriers; the SCAO sometimes calls her to ask about certain cases. She said she does not feel as if the courts are being evaluated solely on numbers.

This speaks to the question of whether justice is being served by all these changes. The bill that resulted in PA 123 and 124 — introduced by Rep. Tom Leonard and Rep. John Walsh who, while in office, did a lot of work intended to improve the court system — amended slightly the language at the beginning of Chapter VI, Section 1 of the Code of Criminal Conduct to read, “The state and the defendant are entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is the duty of all courts and public officers having duties to perform in connection with an examination, to bring it to a final determination without delay except as necessary to secure to the defendant a fair and impartial examination.”

There seems to be widespread acknowledgment in the state that, while the courts are responsible for handling cases efficiently and respecting the parties time, the right to a speedy trial is just one aspect of a defendant’s right to be treated justly by the courts.

Todd comments, “I think our bench here does an excellent job of balancing the need for a speedy procedure and understanding that in some cases justice takes time.”

That is just one of the words of praise she bestows on the 61st District Court. Todd, who is an attorney and former Friend of the Court case manager, says, “I just think [Court Administrator] Gary Secor is the absolute best, and the judges are so supportive and intelligent and fair. [Chief] Judge LaVille is great.

“Everyone works together; this court is a collaborative effort.”