Re-examining the ‘Culture of Delay’

The 6th Amendment to the U.S. Constitution guarantees the right to a speedy and public trial by an impartial jury in all criminal prosecutions, and the right to have the “Assistance of Counsel for the defence.”

This constitutional mandate is binding on all U.S. courts. To that end, courts have fashioned procedures and timelines to ensure that every criminal defendant gets his or her day in court on a speedy basis.

For example, after an arrest, a suspect must be taken before a judge within 48 hours to have the charges read and to enter a plea (the arraignment). In felony cases the defendant must have a preliminary hearing within 10 court days of the arraignment; the prosecution must present witnesses sufficient to show a strong suspicion the defendant has committed a felony. A second arraignment is held on that information, with a pleading filed that lays out the charges; the jury trial must be held within 60 days of that arraignment. That’s pretty speedy.

However, the right to speedy process is waived by a majority of criminal defendants, for tactical and practical purposes. Hence the creation of what this newspaper and the county’s Public Defender have called “The Culture of Delay.”

It is wrong to lay blame for this culture at the feet of the judges of Santa Barbara County. It is wrong to assign blame to anyone. This is a problem created many moons ago for many reasons, including a dearth of resources on the part of defense lawyers charged with the solemn duty of defending each criminal defendant to the best of their legal ability, within the law and within their oath to support and defend the constitutions of California and the United States. It is a duty lawyers take very seriously, as they should. They will not be compelled to act for a client until they are prepared to do so, which involves receiving and absorbing all the “discovery,” or evidence, the prosecution plans to use to prove its case.

It is no secret that our Public Defender’s office is and has been, since the memory of man, understaffed and underfunded. Once upon a time the salaries and benefits of its lawyers matched those of the District Attorney’s Office, but somehow that process got out of whack. It is patently unfair for DAs to make more money than their opponents. This is an issue the Board of Supervisors should carefully study and remedy as soon as possible.

The Judicial Council of California, under the wise leadership of Chief Justice Tani Gorre Cantil-Sakauye, is currently revising California’s approach to the setting of bail. Historically, poor people accused of criminal conduct, and unable to post bail, have languished in jail for long periods, awaiting trial. The Judicial Council has already put into place new procedures and guidelines for judges in setting bail, which will help.

In the meantime, I would encourage my brethren on the court to immediately reinstate the use of Penal Code section 1050’s requirement of two-day written notice of a request for continuance in all criminal cases. The rule is crystal clear: Neither the convenience of the parties nor a stipulation between them is good cause to continue a case. Our collective failing, if any, is to let lawyers come into court on the day of a hearing and simply ask for (and receive) a continuance, without having to make any written showing of good cause. This is a costly practice. It should end.

Finally, I would invite the entire Board of Supervisors to go to court and sit with a judge for a day or half day to see for themselves how things are working or not working. There’s no substitute for seeing for yourself. I think what they will find is that the judges and attorneys are working hard to try to do justice, within the confines of their limited resources and according to a culture that can and should be changed.

Denise de Bellefeuille retired as a Santa Barbara Superior Court Judge in 2014.