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“Rarely has any public institution been held in such open contempt by those who work for it and those who pass through it. Judges call it a sham and a.

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Presentation on theme: "“Rarely has any public institution been held in such open contempt by those who work for it and those who pass through it. Judges call it a sham and a."— Presentation transcript:

1 “Rarely has any public institution been held in such open contempt by those who work for it and those who pass through it. Judges call it a sham and a fraud. Lawyers say that justice is unpredictable at best, and that the tawdry surroundings and atmosphere of deal-making deprive the court of even a semblance of justice.” David Anderson “The adversary process often achieves truth only as a convenience, a by-product, or an accidental approximation.” Former U.S. District Court Judge Marvin E. Frankel

2 17,000 courts 20,000 judges 220,000 total personnel 140 million cases/year (roughly a 1:2 ratio) $20 B annual budget nationwide

3 Basic Court Structure - Minor Trial Courts - Major Trial Courts - Appellate Courts - Supreme Courts - Misc. Courts Hierarchical Judicial review Overlaid system (Federal and states)

4 Hierarchical Structure Supreme Court Appellate Court District Court (Major Trial Court) County Court (Minor Trial Court)

5 International Courts International Court of Justice International Criminal Court Permanent Court of Arbitration

6 Minor Trial Courts Usually called County Courts. Roughly 90% of the criminal case workload is handled by the minor trial courts. Typical jurisdiction includes: Initial appearances Preliminary hearings Misdemeanor trials Traffic and parking cases Civil cases involving less than $51,000 (Nebraska) Often serve as the local juvenile court 59 County Court Judges serving 12 judicial districts in Nebraska

7 Major Trial Courts Usually called District Courts. Typical jurisdiction includes: Arraignments Felony trials Civil cases involving more than $51,000 (Nebraska) Appeals from the minor courts Court of fact (substantive court) vs. court of law (procedural court) principle

8 Appellate Courts Handles appeals from the lower courts No jury Generally sit “in division” Adjudicate the law

9 Supreme Courts Handles appeals from the lower courts No jury Generally sit “en banc” Adjudicate the law

10 Misc. Courts Juvenile courts Small claims courts Courts of industrial relations Tax courts Customs courts Copyright and patent courts Bankruptcy courts Military courts Workers compensation courts Regulatory agencies have judicial bodies

11 Administrative Support Clerk of the courts Maintain case histories/statistical reporting Monitor and schedule cases Document preparation Case indexing Issues summonses Notifies witnesses, attorneys and other principle parties

12 Administrative Support Administrative office of the courts Develop training programs Develop and administer personnel systems Budget preparation Develop and revise legal forms Records management Statistical reporting

13 Federal Court System Minor Trial Courts – U.S. Magistrate’s Court: - Roughly 525 U.S. Magistrates - Serve 8 years terms; appointed by Federal judges - Handle 900,000+ cases a yeare

14 Federal Court System Major Trial Courts – U.S. District Court: - Roughly 1,000 U.S. District Court judges (350 have Senior Status) - Serve for life; appointed by the President -94 judicial districts

15 Federal Court System: U.S. District Court Jurisdiction Federal crimes Civil cases (patent rights, copyright, bankruptcy, anti- trust) U.S. a party in a suit Appeals from lower courts Civil rights violations (Title 7) Diversive Jurisdiction (two or more parties from two or more states involving a dispute of $75,000 or more)

16 Federal Court System Appellate Courts – U.S. Courts of Appeal: U.S. Appellate Court judges - Serve for life; appointed by the President - Usually sit “in division” - 13 U.S. Appellate Court circuits or districts - Nebraska is in the 8 th circuit (based in St. Louis) - Federal appellate courts handle roughly 65,000 cases a year - Court of law (vs. court of fact)

17 Federal Court System U.S. Supreme Court: - 9 U.S. Supreme Court justices (as few as 5; as many as 10) - Serve for life; appointed by the President - Usually sits “en banc” - Roughly 8,000 requests for certiorari are requested each year: * Court grants “cert” to roughly 200 * Court hands down written decisions in roughly cases a year - Court of law (vs. court of fact)

18 Chief Justice Presides in open court and in conferences Speaks first, speaks last Sets the agenda Votes last Assigns the opinion writing duties if votes with the majority Circulates a list of “cert denied” suggestions without conference discussion. Takes 4 votes to remove the case from the list and be heard.

19 Supreme Court Jurisdiction: Article III, Section 2 Foreign Diplomats State vs. State State vs. U.S./U.S. vs. State Foreign country vs. State/State vs. Foreign country Foreign country vs. U.S./U.S. vs. Foreign country Original, non-exclusive, non-concurrent jurisdiction

20 Supreme Court Justices: By Seniority John Roberts, Chief John Paul Stevens Antonin Scalia Anthony Kennedy Clarence Thomas Ruth Bader Ginsburg Stephen Breyer Samuel A. Alito, Jr. Sonia Sotomayor (111 th Supreme Court Justice)

21 International Courts International Court of Justice (“World Court”) - Established in Meets in The Hague - Financed by the United Nations - 15 judges elected for 9 year terms by the U.N. General Assembly - Deals with 22 international crimes

22 22 International Crimes in the jurisdiction of the International Court of Justice 1. aggression (crime against peace) 2. war crimes 3. unlawful use of weapons/unlawful emplacement of weapon 4. crimes against humanity 5. genocide 6. racial discrimination and apartheid 7. slavery and related crimes 8. torture 9. unlawful medical experimentation 10. piracy 11. aircraft hijacking 12. threat and use of force against internationally protected persons 13. taking of civilian hostages 14. drug offenses 15. international traffic in obscene publications 16. destruction and/or theft of national treasures 17. environmental protection 18. theft of nuclear materials 19. unlawful use of the mails 20. interference with submarine cables 21. falsification and counterfeiting 22. bribery of foreign public officials

23 International Courts…continued Permanent Court of Arbitration - Established in Meets in The Hague - Free standing body (not affiliated with the United Nations) - Provides services for the resolution of disputes involving states, intergovernmental organizations, and private parties (treaty violations, boundary disputes, international investment, international trade)

24 International Courts…continued International Criminal Court (“War Crimes Tribunal”) - Established in Based in The Hague - Free standing body (not affiliated with the United Nations) - 18 judges elected for 9 year terms by the nations who are a party to the Court - Deals with: * war against peace/war of aggression * genocide * crimes against humanity *war crimes - Two temporary “War Crimes Tribunals” (Yugoslavia, Rwanda)

25 International Courts: Summary International Court of Justice (“World Court”) Permanent Court of Arbitration International Criminal Court (“War Crimes Tribunal”) All are based in The Hague The World Court is run under the auspices of the United Nations, but the other two are free-standing entites.

26 Selection of Judges – State Level Gubernatorial appointment Legislative election Partisan election Non-Partisan election Missouri Plan * Bi-lateral Commission identifies a small pool of candidates * Gubernatorial appointment * Periodic unilateral elections

27 Selection of Judges - Federal Level Serve for life President appoints, Senate confirms Senatorial Courtesy Rule Supreme Court justice selection criteria: - Political reward - Desire to maintain good relations with interest groups - Ideology - Ability never really a factor (can hire top quality clerks)

28 Removing Federal Judges from Office Direct - Die - Retire - Impeached Indirect - Informal pressure to resign - Prosecuted/convicted (serious misdemeanor or felony)

29 Removing State Judges from Office Direct - Die - Retire - Impeached - Judicial Misconduct Board - Elect a new one at the next election/vote no if in a Missouri Plan state - Initiative/Recall/Referendum Indirect - Informal pressure to resign - Prosecuted/convicted (serious misdemeanor or felony) - Bar Association action

30 Defense Counsel Public Defenders Court Appointed Private Attorney

31 Prosecuting Attorneys State and Local Level - City Attorney - County Attorney - District Attorney - State Attorney General Federal Level - District Attorney - Attorney General - Solicitor General

32 Sentencing Disparity Reforms Move to a determinate sentencing model Consultation among judges - Formal - Informal Sentencing seminars Share sentencing information Appellate review of sentences Court Watch projects

33 Case Backlogs and Delays Delay in getting to trial Long trials Problems for prosecutors and defense Testilying/the jurisprudence of lying

34 Case Backlog and Delay Reforms Greater use of associate judges Expand the use of pretrial hearings and conferences One day trials Set the precise court date at the arraignment/initial appearance Individualized docket

35 Case Backlog and Delay Reforms…continued No plea bargaining within 24 hours of trial Reduce the number of continuances allowed (virtually none within 24 hours of trial) Extend court hours Trial festivals Borrow judges from rural areas

36 Case Backlog and Delay Reforms…continued Rent a judge/Special Masters (civil options) Increase the number of waiverable offenses (and utilize the day fine concept) Adopt the “English Rule” Greater use of community courts

37 Community Courts/Neighborhood Justice Centers Sent to the Community Court by: a. Police in lieu of arrest b. Prosecutors in lieu of a complaint being authorized c. Judges in lieu of trial d. Go voluntarily

38 Community Courts/Neighborhood Justice Centers…continued Suspect and victim appear before a board of citizens drawn from the local neighborhood who listen to the case. a. Citizen board members are not paid. b. No legal representation is allowed. c. The Community Court proceeds in an informal fashion. d. The Community Courts utilizes either the: 1. Arbitration Model (Didactic/Fisher model) – hear both sides and render a decision 2. Mediation Model (Danzig model) – actively become involved with dissenting parties and help work out a solution

39 Community Courts/Neighborhood Justice Centers…continued The Community Court reaches a mutually agreeable, non- legally binding resolution. That decisions nearly always required both sides in the dispute to engage in some form of compensation/restitution (reflects the mutual culpability principle). If no agreeable conclusion is reached, or, if one party fails to fulfill the community court assignment, the case can go forward into the regular judicial system, but this rarely happens. Upward of 90% of the cases are mutually resolved at the Community Court hearing, and 90% of those resolved cases result in both parties completing their Community Court assignments, yielding an aggregate 80% success rate.

40 Community Courts/Neighborhood Justice Centers…continued The justice officials who refer matters to the Community Courts, agree in advance not to continue with the case and to drop all charges, if the matter is successfully resolved (the Community Court resolution is adhered to by all parties involved)

41 Community Courts/Neighborhood Justice Centers…continued The successful resolution rate for community courts (80%) is far higher than the successful resolution rate of regular courts due to two factors: 1. Creation principle (people support what they create) 2. Mutual culpability/compensation principle

42 Community Courts/Neighborhood Justice Centers: Procedural Summary Both parties asked to appear in court – 90% of the time A mutually agreeable resolution in achieved during the Community Court hearing – 90% of the time Reflecting the mutual culpability/compensation reality, both parties required to engage in some kind of restitution/compensation – 90% of the time Both parties complete their court assigned sanction/sentence – 90% of the time Points #2 and #4 yield a successful resolution rate of 80%.

43 Advantages of Community Courts 1.Convenience: a. time b. place 2.Speed in which the disputes are addressed 3.Frees up judicial system personnel 4.Reduces court backlog 5.Jail overcrowding is eased 6.Community safety valve 7.Disputes are resolved 8.Promotes community cohesiveness

44 Problems with Community Courts The American due process model adheres to the principle of procedural consistency and uniformity, and utilizes objective standards and substantive law which yields, in aggregate and in theory, a high measure of social justice, equity and fairness. The Community Court, in contrast, adheres to the informal, fragmented, de-centralized model which yields high level of. We moved away from that model 200 plus year ago. Why do we want to return to it now?

45 Problems with Community Courts…continued Substantive and procedural legal concerns: 1. The legal proceedings utilized by the Community Courts are not consistent, but rather vary from court to court, from neighborhood to neighborhood based on local legal and socio-politico-economic cultures, and with the attitudes and perspectives of the individual community court board member. 2. There are no consistent set of rights that victims nor offender have in the Community Court proceedings. 3. Substantive outcomes vary tremendously from court to court. The Community Courts do resolve cases faster than do the regular courts, but at a cost of sentencing/outcome variation, even disparity.

46 Problems with Community Courts…continued 4. Who can go to the Community Court? There are no objective, substantive legal standards. 5. What appellate options are there for those who are denied access to this dispute resolution option and are being forced into the regular judicial system? 6. Can statements made in the Community court be used in a regular court trial? This kind of informality opens the door to all kinds of potential for abuse – bribery, favoritism, racial and Ethnic discrimination. We tried this once, and it did not work.

47 Problems with Community Courts…continued The philosophic assumption behind the use of Community Courts is that processing people through the standard judicial system, is a bad thing. Generally that is true, but it is not always the case. There are times when regular court intervention is useful.

48 Drawn from Malcolm Feely, Court Reform on Trial, The court system is not capable of solving any Nations’ crime problems. While some proposed reforms can have a positive impact, they should be viewed as nothing more than new ways of holding our fingers in the dike…just buying time. Fundamental changes any nations’ crime and delinquency problems, require fundamental changes in that society’s socio-economic foundations and in its core institutions.

49

50 Nuremberg Trials London Charter/International Military Tribunal 22 tried 19 guilty 12 hung 3 received life sentences Victor’s Justice

51 Nuremberg Trial Issues No legal precedent Military trials (not civilian trials) Violated separation of powers principles Violated the principle of ex post facto Violated German sovereignty Ignored the Superior Order principle

52 Primary Jurisdiction of the International Criminal Court War crimes - Acts of violence against civilian populations or prisoners of war by military personnel in violation of the laws and customs of war, not justified by military necessity; Acts involving weapons or military methods of unusual cruelty or devastation. Violence is the nature of warfare, though it is generally recognized that violence should be limited to military personnel and military targets. Crime Against Peace/Crimes of Aggression - Acts based on the distinction between offensive and defensive warfare. Offensive wars are illegal, but wars in defense of one’s country and sovereignty are considered legal. Crime Against Humanity - Acts that violate concepts of natural law and natural rights of human beings as human beings. Genocide (the deliberate extermination of one class, race, or religious group by another) is listed separately but is often considered a component of this category.

53 Four Models of International Justice 1. Victor’s Justice – Nuremberg 2. International Tribunals – a. International Criminal Court b. International Court of Justice c. Permanent Court of Arbitration d. European Court of Human Rights 3. Hybrid tribunals with a mixture of internal and external representation: a. East Timor – more external b. Sierra Leone – more of an even mix c. Cambodia – more internal 4. Internal tribunals or Truth Commissions – Argentina, Chile, South Africa


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