Rethinking the docket

The other day Scott Greenfield wondered aloud why defendants in criminal cases are required to appear in court on arbitrarily set court dates unlike defendants in civil cases. While his reference was New York - whose procedural rules are quite different than ours down here - his point was well made.

In Harris County a defendant is brought before the court within 48-72 hours of his arrest - if he isn't able to post bond. Posting bond will delay that first appearance for about a week. At that first appearance the defense lawyer has an opportunity to view the state's file and chat with the prosecutor about the facts of the case. The next step is to step out into the hallway with one's client and discuss how the officer's version of facts differs from the one he have the attorney.

At some point there is usually, but not always, a probable cause determination that rarely ends with anything other than there is probable cause to charge the person standing before the bench.

Then, absent a plea on the first setting, the case is reset. The court coordinator will ask the lawyer what day during a particular week (generally three to four weeks hence) he would like to appear. A reset form is filled out, signed and turned in. The defendant is then free to go.

Then, from that point forward, the defendant must appear in court every third or fourth week (in some courts every other week) until his case is resolved. It doesn't matter if there is anything new. It doesn't matter if the decision has already been made to set the case for trial. Combined with judges' new fascination with forcing defendants on bond to report to the adult probation department for pre-trial release supervision, this scheduling pushes defendants to plead to cases early on to avoid the expense (both time and money) of continuing the fight. After all, who can afford to take a day off every month to sit in court and visit a probation officer and then another day off to drive across town to pee in a cup?

Judge Michael Fields has the right idea. Instead of setting routine courts dates in every case, following the initial appearance, Judge Fields sets the case off a few months for a pretrial conference setting. In the meantime it is up to the lawyer to keep in contact with the prosecutor to discuss any new developments (left unsaid is how to keep up with the ever-changing court rotation of baby prosecutors). The procedure is notably different for defendants who can't post bond of course.

Being that, for many attorneys, an upcoming court date is the catalyst to check to see if something needs to be done on a case, practicing in Judge Fields' court might require a new-found discipline to get things done without monthly reminders in the form of court appearances. While the new docket control system isn't perfect, it does make life easier for those citizens who are innocent unless proven otherwise by the state.