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Working the System by Ronald C. Smith

Ronald C. Smith, professor of law at The John Marshall Law School in Chicago, is a former prosecutor and defense attorney. He currently is the director of the award-winning National Criminal Justice Trial Advocacy Competition for law schools, and is the chair-elect of the American Bar Association's Criminal Justice Section.
In "Real Justice" we are introduced to the "justice factory." I have heard it called "the slopshoot," "the conveyer belt," or "the zoo."

The justice factory is the minor crimes local court system in a large metropolitan area - Boston, New York, Cook County (my world), or wherever. Every day, defendants pour in, and the system has to move them on and out. The most important question at the beginning of each day is, "How many cases do we have today? Can we get out of here by 5 p.m.?" These courtrooms are crowded with police officers, defense lawyers, defendants, witnesses, and their retinues. Everyone, it seems, wants to get in and out first. The prosecutors, public defenders, clerks, and the judges have to move this river of cases along expeditiously and with some appearance of fairness.

Small town justice may be different in some ways - the defendants are less anonymous and probably less diverse, the judge more connected to the community, the prosecutor necessarily more of a generalist.

But regardless of the community, the defendants are made up not only of the innocent who have been somehow unfortunately snagged in the maw of the criminal justice system, but also the corner cutters, fools, dreamers, risk-takers, predators, hustlers, bullies, and sometimes merely the clueless. They deny, explain, dodge, bluff, tough it out, shift the blame, whatever.

In the first segment of "Real Justice" we watch Suffolk County assistant district attorney Viktor Theiss handle a morning call of a dozen cases, including a jury. He begins his day with a mess: a murder defendant was arrested on a recalled arrest warrant. Theiss gets the warrant reissued, keeping the alleged bad guy locked up for the moment.

Theiss moves on to a hallway pretrial debate with a defense attorney; this turns into a snarling match. (Theiss, an attractive and apparently hard-working guy - he has what we sometimes call "an affidavit face" - finally cuts off the defense lawyer, "If you can't show up on time with a suit and tie on, don't waste my time."

Theiss later negotiates a car theft case (he asks the victim, "Would you rather have him jailed or pay your money back?" Guess who takes the $600 rather than seek to punish the wrongdoer?). Theiss later tells the judge, "It is with great reluctance that I agreed to this . . . ."

I used to say that when I was a prosecutor, mostly for the benefit of the complaining witness. Like any other prosecutor in these high volume courts, I knew this was one less case in the system.

"Real Justice" is familiar stuff to anyone who has been in the system. The prosecutors want justice, of course, but they also need to get through the day, the week, the month. The defense lawyers work the system - work the prosecutors, work the judges, work whatever they can on behalf of their clients. Plea bargaining is the way of life. Most cases are "pled out."

Over the gates of hell in Dante's Inferno is the declaration: "Abandon Hope All Ye Who Enter Here."

Over the gates of the criminal courts should be written, "Let's Make a Deal."

In the FRONTLINE program the camera (and we) eavesdrop on the hallway negotiations, the whispered conferences, the asides, the deals that both sides must engage in to permit the system to work, to keep it from clogging and clotting into a sludge of backlogged cases. The defendants themselves know how to work the system, too.

For example, in Part II we see a woman accused of child abuse stolidly refuse to acknowledge any responsibility whatever. Her case is pending for over a year, during which time she cannot visit her children. She never signals any sense that she may have contributed to her dilemma. The system is at fault. She blames her children, the interviewers, the prosecutor ("This District Attorney that cares so much about them [my children], is she picking them up to go to school, is she putting clothes on their back?"), and everyone else in sight. She maintains she doesn't need counseling, particularly if it is mandated by the court. We see the neat, doll-house home she has provided for her children. This is no drug mom. This is a woman who is going to get these kids to behave, and get the world to behave if need be, on her terms. She is tough, and so single-minded that she will not accept any reality except the one she has created in order to survive in this world. The system is not going to change her - she will outlast all the lawyers, social workers, judges, do-gooders, and other meddlers who try to interfere. In the end the prosecutor seems defeated by the compromise that brings closure to the immediate charges; the defense attorney seems unrealistically hopeful that things will work out.

"Real Justice" has a dozen or so other sad stories. Let me tell you, there are thousands, millions of such sad stories out there.

A friend of mine, a superb defense attorney here in Chicago, Patrick Reardon, says, "You can't make up a good story about 26th Street." "26th Street" is Cook County's main criminal courthouse. What he means is that the real stories are much better than anything you might try to make up or imagine. There are a zillion people out there who do not seem to have much of a moral compass. They take risks, they do stupid things, they sometimes do truly evil things - and they sometimes get caught.

Aside from the limited number of stories we can watch on such a program as "Real Justice," the difficulty with the stories we do see is that the camera becomes part of the process. In nuclear physics, as the drama "Copenhagen" reminds us, the observer apparently influences the outcome of the experiment as to whether light behaves as a particle or a wave. How does the camera influence the behavior of these lawyers, defendants, witnesses, judges?

And what is really going on even in these vignettes which we do watch? What happens off camera? Prosecutor Viktor Theiss blows off the defense attorney in the hall by criticizing his punctuality and wardrobe - this is on camera! What's Theiss like when the camera's lights are turned down? Why does one judge call him "the illustrious Mr. Theiss"?

Or, why does a mother beat her children? To take sadistic pleasure or to get them to behave or conform?

Why is a 15-year old boy - a killer of the two-year old child he was "baby-sitting full-time" - taking the heat on a case in which he apparently exploded in frustration and punched the child to death? Why on earth would parents leave their child with this concededly inexperienced and untrained boy - he is a boy - full time? No one says anything about the culpability of these parents, and they may even be controlling the sentence negotiations! I wish I knew more about this.

In Part II of "Real Justice," which deals with several serious felony cases, we watch two brothers accused of murder try their luck at a jury trial rather than plead guilty to the lesser offense of manslaughter and take limited terms of imprisonment. The prosecution has virtually a slam dunk case. The prosecutor, for reasons I don't quite understand, says that both brothers will have to plead guilty or both will have to go to trial. Why? Why tie the two together pitting the brothers against one another? The attorney for the less culpable brother undoubtedly wants him to get the deal -- he'll only do seven years! The killer will do 18 to 20. What's the real story behind the family's discussing the decision as to whether both brothers should go to trial rather than plead? We don't know how vigorously the defense lawyers urged the brothers to take the deal. Well, the jury finds them both guilty and they both are sentenced to the mandatory term of natural life. How does the family feel about the decision now -- or in seven years when one brother would have been released from prison, or in 20 to 30 years?

Then there is the other matter of money, of funding.

Theiss tells us he is looking forward to making money - cops make more than he does, if I hear right. He looks forward to the day when he can move on, become a civil trial lawyer, start to make a decent living. The office he works in is underfunded - sooner or later he will take his talent and experience into the private sector. Indeed, even if we can't give individual prosecutors pay raises, can't society find ways to spend more money on the system - which means more public defenders and judges as well as prosecutors? Another program might deal with how these young lawyers who are working for very modest salaries are paying off their college and law school loans - with little in the way of loan forgiveness from the government, even for public service. "Real Justice" does not address these matters, yet funding is at the heart of the system. And, as we know, when the system breaks down - or even appears to break down -- then people will begin to lose faith in it. If the public perception is that the justice system does not really work because the players know how to work the system until it bends or yields, then a private system of justice will (as it in some ways already has) replace it.

There are plenty of anecdotes in Chicago about the shoplifters who are not reported to the police, much less arrested and charged. The store manager or owner will take the hapless thief to a back room or alley and have a couple of employees work him over. These store owners aren't going to waste time in the criminal justice system where, they know, the thief will get continuances, - to get a lawyer, to ask for a substitution of judge, then a trial jury, then a psychological evaluation - until the complaining witness tells the prosecutor not to waste any more of his or her time on the case. After this experience, the store owner will have the guys in the meat department (or wherever) work the shoplifter over the next time. The word gets around, and shoplifting is less of a problem.

Bottom line on "Real Justice": A good program. I want my law students to watch it. "Real Justice" shows us enough of the underbelly of the system to get the uninitiated started. I think the system is noisier, less well-lit, less civil, less organized than the world we watch in "Real Justice." But the lawyers are real, they are passionate, skeptical even cynical, and aware of all the nuances. I liked it.

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