Judge defends pace of felony cases

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Mike DuPre'
Sunday, October 5, 2008
— Rock County’s presiding judge disagrees that a district court report indicates local judges are disposing of felony cases too slowly.

Rock County’s criminal courts—essentially three judges for adult cases—were disposing of 42 percent of felony cases within 180 days, according to a mid-year report prepared for Wisconsin’s Fifth Judicial Administrative District.

The standard, according to the report, is 90 percent of felonies disposed within 180 days.

“It never was a standard. It always has been a guideline,” said James Daley, presiding judge. “If it were a standard, cases would be dismissed at 6 months old.”

Daley said 180 days for Wisconsin has always been a pipedream.

“It never reflected actuality simply because it takes longer than 180 days to dispose of cases,” he said.

In fact, a subcommittee of the district’s chief judges is discussing what to call the measurements—standards or goals.

“I know that at a recent meeting they were considering including in their recommendations that these measures be re-titled ‘goals’ as opposed to ‘standards’ to better reflect their aspirational nature,” said Gail Richardson, Fifth District court administrator.

The grind

Sitting through a criminal court in Rock County can be a numbing experience.

Physically. Emotionally. Mentally.

Cases grind through the same patterns.

Defendants without lawyers are told to contact the State Public Defender’s Office to see if they qualify for free legal representation. Or they’re told to fill out forms so judges can determine if they are eligible for court-appointed attorneys.

Defense attorneys tell judges they need more time—either to investigate the case or talk to prosecutors about plea agreements—but often the deals aren’t done.

Assistant district attorneys say plea negotiations have stalled and cases must be tried. If it’s a drug case—and many are—the judge must set the trial date at least 60 days down the road to give the State Crime Laboratory in Madison time to analyze the suspected contraband.

“They won’t test it until they get a trial date,” Daley said. “DNA, they won’t test unless you push them.”

‘Arbitrary statistics’

Daley and Kathleen Murphy, the staff person working for the judges’ subcommittee, said the measurements used in the mid-year report are based on national statistics that are not relevant to Wisconsin.

As an example, Daley pointed out that the clock starts running on Wisconsin criminal cases long before it does in states that use grand juries to indict defendants.

In grand-jury states, a case’s age begins only after hearings to determine if there’s probable cause. The clock starts ticking only after probable cause has been found and an indictment is issued, Daley explained.

In Wisconsin, the clock starts ticking immediately with the filing of charges. The probable cause hearing—called the preliminary hearing—usually is held weeks later.

And Wisconsin law builds in another delay. Defense attorneys don’t get to look at the prosecution’s evidence until after the preliminary hearing, Rock County District Attorney David O’Leary said.

“That’s when they begin their investigations, and that takes time from a defense point of view,” the district attorney said.

Daley and Richardson said that a more significant statistic included in the Fifth District mid-year report is that Rock County courts disposed of more cases—adult criminal, juvenile and civil—than were filed in the first half of 2008, meaning judges are whittling away at the backlog.

Number of judges

Rock County has seven judges. The seventh was added 20 years ago.

Three judges essentially handle all adult criminal cases. The other four preside over juvenile, civil and family cases.

Asked if having another judge would move cases faster, Daley replied: “The number of judges isn’t the real issue because we don’t have a lot of jury trials.”

Less than 1 percent of cases go to trial in the Fifth District, he said, while the statewide average is 2 percent.

“If we had more jury trials, there’s an area where we could appoint another judge, but that’s not the case,” he said. “In the 1990s, we had 125 jury trials a year. The number of jury trials has shrunk dramatically both in criminal and civil cases. …

“We have to balance civil, divorce and juvenile work, especially at a time when the number of foreclosures is going up dramatically and the collateral things that go along with it—evictions, divorces, money judgments.”

Regardless, other counties in the Fifth District—Dane, Green and Lafayette—have a higher percentage of criminal cases disposed of within the parameters.

That’s a function of fewer cases or more judges, Daley said.

“There’s absolutely no way with the volumes of cases we have” to dispose of 90 percent of felony cases and 95 percent of misdemeanor cases in 180 days, O’Leary said.

DA shortage

Counting O’Leary and Deputy District Attorney Perry Folts—both of whom handle administrative duties as well as cases—Rock County as 14 full-time prosecutors.

A state study last year found that the Rock County DA’s office needs almost six more full-time lawyers, O’Leary noted.

The State Public Defender’s Office in Rock County has 13 full-time lawyers, including Eric Nelson, who manages the local office and public defender’s offices in three more counties.

Assistant public defenders are expected to handle 200 felonies a year, “but there are other less complicated cases,” Nelson said. “Some people go far beyond.”

The 200-felony level is about the floor, not the ceiling, for public defenders, he said.

The public defender’s office regularly depends on private lawyers to take excess cases, but the number of lawyers willing to work for the public defender rate of $40 an hour and be certified to handle criminal cases is dwindling, Nelson said.

While many lawyers might qualify to argue misdemeanors, Nelson said, only one or two in Rock County are certified to handle a homicide or sexual predator case and are willing to work for $40 an hour.

The volume of cases and shortage of attorneys are the reasons the overwhelming number of criminal cases are settled through plea agreements, O’Leary said.

The agreements result in convictions, albeit for lesser crimes or not as many crimes with which defendants were charged.

“Our underlying job is to do justice and protect the community,” he said. “Because I have experienced attorneys, they are able to get convictions in criminal cases and bring defendants before judges for sentencing.”

While plea agreements save the time and expense of trials, they also build in delays because victims have to be notified of the deals and given the opportunity to comment on them in court, Nelson noted.

Another factor that has created delays—on paper—is that Rock County drug court cases are resolved but kept open until offenders complete the program, which is intended to keep people out of jail, Daley said.

And property crime cases often are held open until the offender makes restitution to the victim, Daley said.

Quickly resolving cases is only one objective in the judicial system—and not the most important one, Nelson said.

“I think the quality of justice is more important than any sort of goal in terms of speedy processing,” he said.


Rock County judges have been disposing of more cases than were filed since 2003.

In 2002 and 2003, clearance rates were 99.2 percent and 98.4 percent respectively, meaning a backlog was building.

But county judges disposed of 3,232 adult criminal cases in the first half of this year, when 2,793 were filed. That’s a clearance rate of almost 116 percent.


Rock County prosecutors filed an annual average of 5,862 criminal cases—felonies, misdemeanors and criminal traffic cases such as drunken driving and driving on a revoked license—between 2002 and 2007.

As of July 1 this year, the DA’s office had filed 2,793 such cases, putting 2008 on pace for 5,586 cases.

Last updated: 10:47 pm Thursday, December 13, 2012

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