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Jacobs & Dow, LLC

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Shall We Gather At The River

Pretrials in Connecticut’s criminal courts are unique. They fall somewhere between a group therapy session on the one hand and a Penology 101 seminar on the other. I don’t think my former partner, Judge Grundel, invites all the lawyers on the domestic relations docket to sit in on his attempts to resolve nettlesome divorces. And I know Judge Silbert, his game show talents to the side, does not aggregate civil cases so that all plaintiffs counsel in unrelated cases can kibitz with counterpart defense counsel to determine, like figure skating judges, the appropriate terms on which civil matters should settle. Cases in those venues are discussed one-at-a-time, in private, behind closed doors.

Not so our criminal pretrials. Intended or not, they have become audience participation events. Everybody’s welcome. Doors are often open. Group participation, though not invited, is expected and, for the most part, tolerated. The prosecutor presents a summary of the case. Defense counsel responds by contradicting, deflecting or highlighting outstanding personal qualities of the client that merit special consideration. Meanwhile the audience of other lawyers-prosecutors and defense counsel-contribute constructive ideas, alternative perspectives or simple wisecracks.

In the GA or Part A, the configuration is pretty much the same: judge behind the desk; prosecutors in their assigned chairs; and defense counsel standing, sitting, kneeling or sporadically entering or leaving for reasons known only to themselves.

I’ve yet to decide whether this is good or bad. We’ve gotten used to it and it seems to work. What’s more interesting is how all this came to be.

A number of years ago Judge Frank Kinney, the State’s presiding criminal judge, like judges today, was concerned about “The Backlog”. Arnold Markle was the fiery State’s Attorney for New Haven whose attributes included the ability to generate fierce loyalty from his assistants. For reasons I believe were based on Judge Kinney’s undercutting what Mr. Markle considered the State’s “reasonable” offers, Arnold one day announced “No more plea bargains!”

Alas! Would the system screech to a halt if bargains could not be struck with the prosecutor? Arnold might have believed so. Judge Kinney disagreed. If the State wouldn’t plea bargain, Judge Kinney would. From then on defense counsel were invited into chambers to bargain directly with the judge. The prosecution was also invited. If the State didn’t wish to participate, they were entitled to watch as their cases were bargained away.

That was the beginning of how plea bargaining changed. No longer were deals struck between counsel in prosecutor’s offices subject to judicial approval. Now there were chambers conferences that bypassed the middleman. Other judges throughout the State adopted Judge Kinney’s system.

But the group pretrials, that’s a different story. It was rumored that certain attorneys in certain GA courts—not in New Haven— would emerge from these sessions with judges and inform their clients the judge was in their pocket and had offered this defendant a super deal just because of the lawyer’s influence. This was, of course, false, but the client didn’t know it. Word spread. Clients began to gravitate to certain lawyers because of their perceived but not-existent “hook”.

A problem, yes, but not one a good judicial head couldn’t solve. The solution: “Bring ’em all in. That way everyone will know what deal everyone else is getting.”

That, as I recollect it, is how our present system came to be. It’s not perfect, but it does seem to get the job done and the playing field is pretty much level. And, at least until I get the “hook”, I’ll traipse along with others to kvetch, argue, wheedle and whine before the congregation of buttinskys trying to get the best plea bargain I can.