Trials are where the scales of justice are displayed for the public to view, and at the conclusion, the hope is they remain balanced.
The scales of justice are about fairness in court cases. There are two sides to every story, and each side of a case or a story must be heard. Each side gets the chance to present the details of the case. Almost all cases start in a local trial court and most cases are resolved there, too.
Sometimes, however, cases don’t make it to trial as pleas are reached between the prosecution and defense and accepted by the court. While ideally, everyone would have “their day in court,” i.e. a trial, that is just not feasible. Whether it is the simple logistics of not being able a hold a trial for every case that comes into the system or because reaching a plea could be more beneficial to a defendant than letting things play out through a trial, there are many reasons it simply isn’t possible.
When it comes to how many trials can be held in the 28th Circuit Court, which serves Wexford and Missaukee counties, Judge Jason Elmore said the circuit court can do, on average, 24 to 30 trials in a year. When it comes to managing a court docket, Elmore said several factors come into play. They include the availability of counsel, witnesses, jurors and the number of criminal, civil and divorce cases to name a few.
“I split time between the two counties, 3 to 1 respectively. Circuit court handles all felony criminal cases and lawsuits over $25,000,” he said.”It also addresses personal protection orders and divorces without minor children as well as oversee the friend of the court.”
On Monday mornings, Elmore addresses pleas, sentencings and pretrial conferences on criminal cases, while on Monday afternoons he handles divorces. On Fridays, Elmore addresses final conferences on criminal cases set for trial, pleas, and other criminal and civil motions.
Tuesday through Thursday, Elmore said he address everything else, including trials in all matters, hearings on probation and bond violations and motions in both criminal and civil cases. He also uses those three days for legal research and writing opinions and orders on a variety of cases.
In addition to his in-court duties, Elmore said he also has other obligations outside of the courtroom. He sits on boards for the Wexford-Missaukee County Corrections, and the Michigan Criminal Justice Information System. He also sits on the criminal law committee of the Michigan Judges Association for Circuit Court Judges.
Sometimes, however, processing the criminal docket is not just about time, according to Elmore.
“It is also about ensuring due process to all parties. Sometimes, cases simply take longer to resolve based on the facts and legal issues involved. Every case is unique and important to the parties, witnesses, victims and counsel handling the case,” he said.
He also said finances are not the concern at least for the court. Trial courts are here to provide a critical, constitutional and statutorily required service to those in our community and Elmore said the judiciary is as important to our operation of government as the executive and legislative branches. If more trials are needed, Elmore said the court can accommodate the need by rearranging the schedule of the court to meet that need.
Elmore recently received performance numbers for the 28th Circuit Court. He said the state average for resolving felony cases in 90 days is 43% and Missaukee and Wexford counties are 57% and 70%, respectively. He also said the state average for resolving felony cases in 300 days is 80%, while Missaukee and Wexford counties are 99% and 98%, respectively.
It’s a similar situation for civil cases as Missaukee and Wexford counties resolve those cases in shorter times compared to the state average. What that means is the 28th Circuit Court is more efficient in processing its cases when compared to statewide averages.
Finally, Elmore said the judge’s role does not include deciding which cases go to trial. That decision is made by the parties and in criminal cases, to a larger part, that is up to the prosecutor.
Wexford County Prosecutor Corey Wiggins said when it comes to the biggest obstacle his office faces when going to trial it is time.
“There is a lot of time from a prosecution standpoint that goes into preparing for trial. Because the prosecution has the burden of proof, it will generally present more witnesses and evidence at trial,” he said. “This means there is a lot of time meeting with witnesses, going over their statements and preparing them for trial. In addition to preparing for trial, the function of the office remains in full swing. This means that schedules are adjusted, cases and job duties are reassigned to assure that all aspects of our responsibilities are not impacted.”
He said there are most definitely times it makes sense for a case to go to trial. First and foremost, Wiggins said every accused person has a right to a trial and there are times when both sides believe they have viable arguments. When that happens, it makes sense to have a judge or jury determine the outcome of the case.
He also said as a prosecutor he usually has a good feeling for the cases that will be going to trial. He said he uses the term feeling because there is no set formula for knowing. Sometimes it is based on the type of case. For example, Wiggins said a murder case is more likely to go to trial than say an assault case.
“Sometimes, you have a feeling based on prior experiences with that defendant. There are times when I know a defendant is not willing to accept any plea agreement and is set on going to trial,” he said.
In 2022, Wiggins said his office reviewed 1,180 police reports. Of those reports, he said 1,105 resulted in adult criminal files.
For a felony, which generally is a crime punishable by more than one year in prison, he said the trial averages about two days. For a misdemeanor, crimes punishable by less than one year in jail, Wiggins said the trial is generally done in one day. In 2022, the Wexford County Prosecutor’s office issued approximately 338 felony files and 767 misdemeanor files.
Because the 28th Circuit Court is shared in Wexford and Missaukee counties, Wiggins said at most there are 26 weeks available to each county to hold trials. He said assuming at best there could be two trials a week that only leaves time to have 52 in a year.
“That obviously is in a perfect world. However, that does not take into account the need for adjournments due to unavailable witnesses or other delays such as backlogs at the labs,” he said.
As food for thought, Wiggins said the district court, which handles the misdemeanor trials, has limited times for trials, too. If his office were to have a trial every day of the year for misdemeanors, it would take more than two years to get through the number of files that were charged in 2022.
The pace is simply not doable, Wiggins said.
Missaukee County Prosecutor David DenHouten said, like in Wexford County and other counties across the state, all prosecutors must manage limited resources and prioritize cases.
In Missaukee County, DenHouten said there are roughly 600 criminal cases filed per year and there are two full-time prosecuting attorneys, including him, to manage these cases. Since he was elected as county prosecutor, DenHouten said jury trials have increased significantly for a variety of reasons including a dramatic increase in funding for defense attorneys through the Michigan Indigent Defense Commission and a reduction in incarceration sentencing for crimes.
In 2022, there were seven jury trials in the circuit court and there have been three jury trials in the circuit court so far in 2023, according to DenHouten. He also said there are district court jury trials each year.
“All defendants have a right to a jury trial if they so choose, but trials are typically used to resolve significant factual issues that often do not exist, and therefore it is often logical for a defendant to enter a plea and take responsibility for the crime, so as to receive some credit at the time of sentencing,” he said. “Also, a plea offer to a reduced charge may be appropriate for a defendant with a limited prior criminal history, especially in cases that do not involve a serious assaultive type crime or drug distribution, which are the highest priority for this office.”
Like Wiggins, Wexford Missaukee Chief Public Defender Robert Champion said there are only a certain number of trials that are possible in a year. He said that locally there is just not the court resources or court capacity but both his office and the prosecution need time to prepare cases. It is all of those things that make it difficult.
That said, Champion said more cases are going to trial in Wexford and Missaukee counties than in the past. While that is true he also cited a recently released report by the American Bar Association regarding plea bargains.
In the report, it stated a task force was formed in 2019 to address persistent criticisms of the plea bargain system in the United States. While the plea bargaining process in the United States is broad and varied, the task force determined that it was important to craft a single set of principles to guide plea practices generally. In total, there were 14 principles listed in the report.
The principles covered various topics and some are listed below.
The first principle says a vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system. The fifth principle stated the criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.
The sixth principle states there should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion and that the defendant understands the consequences of their decision to plead guilty.
“The benefits of a trial is it improves our trial skills as an attorney and keeps them fresh. It also gives the system more transparency,” he said. “At the same token, the system would grind to a halt if every case went to trial. We don’t have the resources. I don’t believe anyone would benefit from all cases going to trial. I think we have a good system now.”
He also said a majority of the people who become his office’s clients understand they made mistakes and they want the best possible resolution they can get so they are not forever in the system. Sometimes that means accepting a plea agreement. He said it can be a better resolution for them than a trial, especially if they lost.
There are things like Section 7411 of the Public Health Code or the Holmes Youthful Trainee Act that can be good resolutions to cases that keep things off their permanent records.
A 7411 deferral allows a person to plead guilty to a drug possession charge and then have that “guilty” charge and plea dismissed after a probationary period. This is only available to individuals who do not have prior drug crimes on their record.
Michigan’s HYTA gives a youthful offender, ages 17 to 23, a chance to keep a criminal offense, including felonies, off of his or her record. A person who seeks HYTA is required to formally enter a guilty plea to the offense or offenses which are being considered for HYTA status. However, once the court accepts someone on HYTA status, the court does not enter a judgment of conviction and Michigan State Police records become closed to the public view.
Champion said there also can be disadvantages, which was one of the driving forces to the creation of the Michigan Indigent Defense Commission and public defender offices.
“It was financially beneficial to the defendants’ attorney to plead a case away early by how poorly they were being paid. It makes sense,” he said. “If you getting paid $400 for a felony case that is not much money. Now that we have full-time attorneys getting paid the same as an assistant attorney general, there is no financial benefit from pleading the case away early.”
When it comes to the process of how a plea works, Champion said typically the prosecutor’s office will offer a plea at the probable cause conference, which occurs shortly after a person is arraigned at the district court level. It is at this time that both sides are evaluating the strengths of their cases.
For attorneys in his office, Champion said they are getting discovery and talking with their clients. He said they have to ethically discuss all plea offers with their clients and are always looking at what is best for their clients. They look at both ramifications and benefits of accepting a plea.
Wiggins said sometimes an offer is accepted right out of the gate and other times it is not. It is not uncommon for the defense to make a counter-offer and then go from there until there is an agreement, Wiggins said.
“However, there are times when the defense will approach us first. In regards to the judges becoming involved, every jurisdiction handles this differently. For us, it is a rarity if the judge gets involved in the plea agreement,” he said. “However, there are times when the parties approach the judge together and have a conversation something like, ‘this is what we are thinking…what are your thoughts?’”
When deciding what type of plea agreement will be offered, Wiggins said they look at several factors. The big factors include the severity of the crime, the person’s criminal history, their age, were there any mitigating circumstances and the wishes of the victim. He said it also is important to remember, that contrary to public opinion, the victim is not the person bringing the charges.
Rather, Wiggins said the victim is the People of the State of Michigan. So, while the victim gets to have input on how they would like to see the case resolved, he said ultimately is the prosecutor’s office that makes the final decision.
Wiggins also said while there is a general perception that a plea agreement is somehow “giving away the farm,” that is not always the case.
“There are times when I admit, I give more than I want to, for example when we have uncooperative witness,” he said. “However, most of the time, plea agreements become a fine balance between protecting society and creating the parameters for the court to be able to impose a sentence that acts both as a punishment and a deterrence for others to commit the same type of behavior.”
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