The impact and complexities of municipal court matters often exceed those in Superior Court.
We frequently see the use of complicated evidential proofs, experts, “instruments” to prove a defendant’s guilt, poorly trained judges and prosecutors, shrinking available resources, lengthy dockets, limited court availability and lack of uniform decisions, among other things.
On top of that, attorneys sometimes arrive without knowing Part VII of the Rules of Court, have not reviewed their file, do not know the law and appear with no physical file at all.
Because municipal court is often seen as the “red-headed stepchild” of the judiciary, many attorneys handle their matters consistent with that misguided view. Some judges, prosecutors and defense attorneys waltz into municipal court and do and say things they would never contemplate doing or saying in Superior Court.
In the past few months, I have seen and heard the following:
• a judge tell a defendant to make telephone calls to obtain money to pay his fine;
• a judge tell an attorney that the U.S. Constitution did not apply to a statute;
• a prosecutor tell an attorney that if the attorney persisted with his request for a trial, the prosecutor would remember that “the next time” and the attorney’s clients would not get the same plea agreement as others;
• a prosecutor tell a defense counsel that he is required to inform the state about deficiencies in the state’s case;
• a judge state that she had to call police officers to clarify charges;
• prosecutors require defendants to pay more for discovery than allowed by court rule to help cover their office expenses;
• judges impose maximum fines in every case without analysis of the facts or the ability to pay;
• a judge ask questions the prosecutor forgot to ask in trial;
• courts contact the state’s witnesses to verify availability or to find out why they are not present;
• judges and/or court staff have ex parte communications with prosecutors and police departments about cases;
• prosecutors have keys to court offices for access; and
• judges and prosecutors have “local” rules for plea agreements and fines.
And the defense bar, including myself, sits idly by and does nothing about these professional digressions.
As a group, and as individuals, attorneys are loath to file judicial ethics complaints and/or attorney ethics complaints against prosecutors for fear of retribution. Many judges and prosecutors are our friends, acquaintances and/or colleagues.
It is only in the most egregious cases that such complaints are filed. And they make headlines and often result in removal from office. But only the almost outrageous cases are brought, and often only because our clients were smart enough to know something very wrong occurred. These significant legal, procedural and ethical transgressions are everyday occurrences in municipal court.
Because we, the defense bar, do not hold the feet of judges, courts and municipal prosecutors to the fire, we allow these reprehensible legal, ethical and procedural transgressions to continue. We, the defense bar, are our own worst enemy because we allow the system to remain intact. We are afraid of the repercussions to ourselves and future clients. And as a result, we sit back and do nothing. The landscape would change dramatically if the defense bar would require municipal courts to act in the same professional and ethical manner as is expected and demanded in Superior Court.
Recently, a municipal court employee summed up the system to me succinctly when he compared it to the “ongoing poker game” in his barracks when he was in the U.S. Marine Corps. This Marine knew the card game was not on the “up and up,” but if he wanted to play cards, “it was the only game in town.”
It is time that we, the municipal defense bar, demand a new deck of cards. •