BJA Criminal Courts Technical Assistance Project: TA Report No

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2 BJA Criminal Courts Technical Assistance Project: TA Report No Recommendations to the Tenth Judicial Circuit Court in Jefferson County (Birmingham), Alabama Regarding Development of a Criminal Differentiated Case Management (DCM) System CONSULTANTS: Hon. John T. Parnham (Ret.) Hon. Bruce T. Beaudin (Ret.) Suzanne Schneider John Triplett February 2012 This report was prepared under the auspices of the Bureau of Justice Assistance (BJA) Criminal Courts Technical Assistance Project at American University, Washington, D.C. This project was supported by Grant No DD-BX-K037 awarded to American University by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author(s) and do not represent the official position or policies of the U.S. Department of Justice.

3 CONTENTS I. INTRODUCTION 1 A. Background 1 B. Description of the Tenth Judicial Circuit Court 1 C. Technical Assistance Consultants Assigned, Site Visit 2 Agenda, and Study Methodology II. OBSERVATIONS 4 A. Overview: Implications of the Current Budget Crisis on 4 the Criminal Caseflow Process in Jefferson County 1. General Comment 4 2. Implications for the Courts 4 3. Implications for Other Agencies Involved in the Criminal 5 Caseflow Process B. Other Issues Relating to the Criminal Case Process: Information Technology (IT) System 7 1. General 7 2. Sheriff s Information 7 III. DIFFERENTIATED CASE MANAGEMENT (DCM): OVERVIEW 8 A. Emergence of DCM Programs 8 1. DCM: Summary Overview 8 2. Caseflow Management and Delay Reduction: General Principles 8 Chart: Time Standards for Alabama Circuit Court Criminal Cases 9 B. Objectives of a DCM System 10 C. Benefits of a DCM System 11 IV. SUMMARY RECOMMENDATIONS 12 A. Recommendations Relating to the Design of a Criminal DCM Program in Jefferson County 12 Recommendations One: The Presiding Judge should establish a 13 Differentiated Case Management Policy Committee. Recommendation Two: The DCM policy committee and the Task Force 13 Should develop a comprehensive understanding of the court s caseload characteristics and how it presently is being disposed. Recommendation Three: The number of tracks that will be needed to 15 facilitate timely disposition of all cases should be determined. Recommendation Four: Criteria to use to identify the classes of criminal 15 cases that will be assigned to particular processing tracks should be developed. Recommendation Five: A Standard Scheduling Order for each track needs 15 to be developed. Recommendation Six: An information support system needs to be developed 16 to facilitate monitoring the performance and outcomes of the DCM system. Recommendation Seven: Mechanisms for ongoing communication among all 16 stakeholders in agencies involved in the DCM process need to be established. Page

4 B. Other Recommendations to Promote Improved Caseflow Management 17 Recommendation Eight: The District Attorney s Office should undertake 17 necessary efforts to reduce the current backlog of cases pending indictment through expedited resolution, pre-indictment screening, and other initiatives. Recommendation Nine: The District Attorney s Office should review its 18 internal processes and policies regarding plea offers to ensure that plea offers are extended as soon as possible in the process. Recommendation Ten: The Presiding Judge should consider implementing a 18 process of managing cases that have been bound over to the Grand Jury but have not been presented to the Grand Jury. Recommendation Eleven: The court should review the current process for 19 appointing attorneys for indigent defendants to determine if a more efficient, timely and economical process is feasible. Recommendation Twelve: The judges should develop uniform trial 20 scheduling guidelines. Recommendation Thirteen: The court should develop a written policy 21 regarding continuances. To the extent possible, this policy should be uniformly applied and require approval by the administrative judge for requests that do not comply with this policy. Recommendation Fourteen: An automatic system of victim notification which 21 accommodates both the victim and the early disposition of a case should be developed. V. PRELIMINARY ACTION PLAN FOR DEVELOPING A CRIMINAL 22 DCM PROGRAM A. Getting Started: Establishing the DCM Policy Committee 22 and Task Force B. Developing The Framework For The DCM Program 22 C. Policy Issues To Address 24 (1) Interface of the District Court Process with the Circuit Court Process 24 (2) Policy regarding trial postponements 24 (3) Policy regarding discovery production and deadlines 24 (4) Policy on case assignment 24 (5) Policy on judicial assignment in cases entailing guilty pleas 24 pre-indictment (6) Role of the presiding judge regarding caseflow management 24 (7) Use of cross-designation of Circuit Court judges as District Court 24 judges to manage the caseload pending indictment (8) Mechanisms to expedite disposition of routine cases in the District 25 Court pre-indictment D. Implementation Issues/Tasks 25 (1) Effective Date 25 (2) Handling the Existing Caseload Filed Prior to the DCM 25 Implementation Date (3) Role of the presiding judge in the management of the pending caseload 25 (4) Publicizing the New DCM Program 25 Page ii

5 (5) Forms 25 (6) Training 26 (7) Information System Support 26 (8) Managing the Change: Addressing Implementation Issues 27 as they Occur (9) Providing Ongoing Information on DCM Implementation 27 to the Court and Other Stakeholders (10) Ongoing Assessment of the Performance of the DCM System 27 E. Data for Analysis 27 Page VI. CONCLUSION 29 ATTACHMENTS Differentiated Case Management Plan: Montgomery County, Maryland Circuit Court: Excerpts A. Criminal Case Tracking Guidelines B. Criminal Track 2: Routine (Sample) C. Case Tracking Information Sheet: (1) State s Attorney s Office (2) Defense Counsel D. Scheduling Orders (1) Criminal Scheduling Order (Track 2): Sample (2) Consent Scheduling Order in Lieu of Scheduling Conference iii

6 A. Background I. INTRODUCTION In February 2011, Presiding Judge J. Scott Vowell of the Tenth Judicial Circuit Court in Birmingham (Jefferson County), Alabama, submitted a request to the Bureau of Justice Assistance (BJA) Criminal Courts Technical Assistance Project (CCTAP) at American University for assistance in developing a Differentiated Case Management (DCM) plan for criminal cases to complement the civil DCM plan the court has had in operation since Judge Vowell submitted this request after attending a Caseflow Management Summit at the National Judicial College in December 2010 at which time the benefits of DCM were discussed, particularly in light of its potential utility for maximizing available justice system resources. The letter from Judge Vowell, dated February 2, 2011, stated as follows: we urgently need to establish such [DCM] plans in Criminal and Domestic Relations; I have raised the issue with the Judges in those divisions, and have furnished them with the BDCMP [Birmingham Differentiated Case Management Plan for civil cases].,.i think it is extremely import to institutionalize and memorialize such a plan and, in requesting assistance to develop a criminal DCM, indicated that it was his intention to establish a criminal DCM plan in the year remaining in his current term of office. In March 2011, in connection with technical assistance being provided in the 23 rd Circuit (Madison County) in Huntsville, Judge John T. Parnham (ret.), former Chief Judge of the 1 st Judicial Circuit Court in Pensacola, Florida, and Richard Hoffman of the CCTAP staff, visited the Jefferson County Circuit Court to discuss the technical assistance request with Judge Vowell, other judges of the Court, and members of the court staff. The judges as a group indicated their broad support for implementing a DCM system for the criminal caseload. During the months following the March meeting, the CCTAP maintained communications with Judge Vowell regarding the assistance requested and attempted to schedule a follow up site visit. However, other local priorities precluded finalizing plans for the site visit until the fall of 2011 when Judge Vowell indicated that the prospective CCTAP site visit would be feasible during the first week in November. A site visit was then scheduled for November 1-2, B. Description of the Tenth Judicial Circuit Court The Circuit Court of Jefferson County, Alabama (10 th Judicial Circuit) is the principal criminal court hearing serious criminal cases in two divisions: Birmingham and Bessemer. It is the largest state trial court in Alabama. Although the court also hears civil and family Assistance Project: TA Report No American University. February Page 1 of 35

7 cases, it possesses the major criminal jurisdiction. The Circuit Court has assigned its 38- judge judicial complement to sit in subject-matter divisions, viz., criminal, civil, and family. The Circuit Court for Jefferson County has utilized an effective Civil DCM Plan it developed and adopted in 1990, revised in 2008, to achieve efficiencies and appropriate use of judicial resources in its civil caseload, incorporating disposition goals within each track ranging from the resolution of cases on the expedited track within six months and those on complex tracks within 24 months. In 1999, the court s case process underwent substantial review as part of an overall Jefferson County Justice System Assessment conducted by the Institute for Law and Policy Planning (ILPP). That study found that the criminal filings in the circuit had been increasing (in contrast to other categories of cases, which had remained stable or fell in number) and the court was encountering difficulty in keeping pace with the criminal caseload. The Court s Administrative Order AO Annual Assignment of Circuit and District Court Judges for 2011 provides for the assignment of the four (4) District and eight (8) Circuit Court judges handling criminal cases. Two judges handle all felony cases filed in the District Court; the Drug Court judge handles drug cases; the 4 th judge is also designated as a Special Circuit Judge to hear all felony driving-under-the-influence cases and such other felony cases as may be assigned to him C. Technical Assistance Consultants Assigned, Site Visit Agenda, and Study Methodology The consultant team assigned by American University to provide the requested technical assistance consisted of: Judge Parnham; Judge Bruce T. Beaudin, (ret.) of the Superior Court of the District of Columbia and former Director of the D.C. Pretrial Services Agency; Ms. Suzanne Schneider, DCM Coordinator at the Circuit Court for Montgomery County (Rockville), Maryland, and John Triplett, Director of Court Services in Nez Perce County Idaho. In addition, Mr. Eric Anderson of the Alabama Administrative Office of Courts, responsible for the AOC s case management and jury office, and Ms. Carrie McMillan of that office assisted with the site visit. The site visit focused on conducting a review of the current criminal case management process in the Circuit Court and developing recommendations for planning and implementing a criminal DCM program. The following is a list of persons interviewed during the site visit: Judges of the Tenth Circuit Court: Judge Alfred Bahakel Judge Bill Cole Judge Tommy Nail Judge Shanta Owens Judge Laura Petro Judge Teresa Pulliam Judge Katrina Ross Assistance Project: TA Report No American University. February Page 2 of 35

8 Judge Virginia Vinson Judge Scott Vowell Judge Stephen Wallace Judge Shelly Watkkins John Bowers, Assistant District Attorney Foster Cook, Director TASC Brandon K. Falls, District Attorney Kira Fonteneau, Defense Attorney Captain Cleveland Moore, Sherriff s Department Sandra Turner, Court Administrator Everett Wess, Defense Attorney Michele Yarbrough, Assistant District Attorney Anne-Marie Adams, Clerk of Court We wish to acknowledge the substantial interest and the openness of all those interviewed. Their willingness to help us understand the current system and its strengths and weaknesses made this study feasible and informed whatever value this report offers to the courts. Particular thanks are due to Judge Vowell and his staff, including Sandra Turner, Court Administrator, and Foster Cook, Director of the TASC program. Any errors of facts or interpretation are the sole responsibility of the consultants. Assistance Project: TA Report No American University. February Page 3 of 35

9 II. OBSERVATIONS A. Overview: Implications of the Current Budget Crisis on the Criminal Caseflow Process in Jefferson County 1. General Comment The CCTAP team encountered a criminal justice system challenged by an ongoing financial crisis and attendant cuts in funding. (It is the study team s understanding that Jefferson County filed for bankruptcy court protection later in November, 2011.) There was consensus among nearly all interviewed that the felony criminal caseload is beset with delay, contributing to backlogs in the court, the district attorney s office, and to the overcrowded conditions at the jail. Interviews indicate that the span of time to disposition ranges from well less than a year for the felony cases resolved in the District Court to several years for a significant proportion of the felony criminal caseload. The financial crisis appears grave enough to potentially impact the ability of the justice and public safety systems to deliver their constitutional and legal mandates. 2. Implications for the Courts The Circuit and District Courts also have not been immune from the impact of budgetary shortfalls. Judges sitting as District Court judges were traditionally provided with a clerk/assistant as well as a bailiff for courtroom order and security. They now must choose one staff member, i.e., a clerk/assistant OR a bailiff and, in doing so, must balance the need for assistance in the important work of processing cases, including the production of orders and other documents, with personal safety and the safety of witnesses, staff, and members of the public, as no other security is provided in the courtroom. The 60% reduction in staffing associated with the Clerk s Office has meant that no Clerk staff makes a record of courtroom proceedings, and further, that the 350 to 400 indictments handed up during the Grand Jury week each month generally take a month to be entered into the Court s new statewide imaging system, scanned and docketed. As indictments are not distributed until all indictments are fully processed, cases -- and the defendants they relate to -- languish for a month before judicial management of the caseload can begin, as judges cannot schedule even initial hearings until a case number exists and has been released. A further complication, the recently implemented state-wide e-system, which allows scanned images of court documents to be filed and accessed, while an important step in building efficiencies in the administration of justice, is hampered by inadequate or outdated hardware in the courts, resulting in slow operation and crashes on individual workstations. Assistance Project: TA Report No American University. February Page 4 of 35

10 3. Implications for Other Agencies Involved in the Criminal Caseflow Process In addition to the Courts, other justice agencies and departments that rely upon State and County funding have been significantly affected by state and local budget cuts for the past several years, ranging from a statewide reduction in the number of weeks in which jury trials are available in the Circuit Court to loss of County funding for the widely relied upon and respected Treatment Alternatives for Safer Communities Jefferson County Community Corrections Program (TASC). The TASC program provides pretrial and post-adjudication community supervision. As noted in the previous section, the Clerk of Court s Office has suffered a significant reduction in staffing due to a lack of funding.. Further, a new jail built to address chronic overcrowding in the existing jail -- a situation which has resulted in at least one federal lawsuit -- remains mothballed as the Sheriff s Office has no budget to staff the facility and is dealing with cuts in current staff and funding to meet existing mandates, including the operation of the existing jail designed for 800 inmates, yet typically housing 1,300. As a result of the budget cuts, TASC can no longer provide pretrial interviews or supervision of defendants, oftentimes leaving the judiciary to set bail with incomplete information about potential risks posed by defendants, who are presumed, with exceptions, to be entitled to bail by law. Further TASC is no longer able to support the community supervision of defendants in the various problem solving courts, i.e. Drug, Mental Health and Domestic Violence. (A donation by the Sheriff to TASC underscores the commitment to and need for a community alternative to detention and prevention. If community supervision is no longer available, there is a substantial risk of an explosion in the local jail population.) According to persons interviewed, hearings for detained defendants who are arrested without a warrant -- required to be held within 48 hours of arrest -- are now typically conducted in 72 hours, (the timeframe required for arrests based on warrants) during which period defendants must remain in police custody rather than in jail. These first appearance hearings are conducted without the assistance of counsel for the detained 1, who will not be appointed counsel until a first hearing, which is typically conducted ten days to two weeks later. No public defender service exists in Alabama at the state court level; indigent defendants are appointed private counsel at a reported cost of $10 million annually in Jefferson County, including investigative and expert expenses. A major initiative to improve the effectiveness of appointed counsel and the role of appointed counsel is underway at a 1 See Rothgery v. Gillespie County, Texas (2008).The US. Supreme Court, in an 8-1 Opinion, stated that the right to counsel commences when the government has committed itself to prosecute... Saying that whether the Prosecutor is aware or not a criminal defendant s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of the adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Assistance Project: TA Report No American University. February Page 5 of 35

11 statewide level. Interviews indicated that the quality of representation can be inconsistent due to lack of experience or lack of initiative on the part of some appointed counsel a situation which adds further impediments to the prompt and appropriate disposition of cases and which can also extend unnecessary time defendants spend in detention prior to trial. Budget cuts have also forced the closure of forensic testing facilities and cancellation of contracts for such services. Delays of up to eight months have been experienced in the testing of drugs and other contraband seized as evidence by law enforcement, causing delays in indictment and trial. The District Attorney s Office has also faced reductions in force. As mentioned above, budget cuts reduced by approximately half the number of weeks in which jury trials could be scheduled. However, it appears the funding has been restored in next year s budget which should increase the number of jury trial weeks available to the courts and the defendants. It is not clear if anyone entitled to a jury trial was denied one or may have had to wait longer to be reached. While the impact on access to justice by defendants and parties entitled to jury trials and the public s confidence in the court s ability to provide justice is difficult to measure, reason suggests that the impact of these budget cutbacks was most probably not a positive one. A comparison of jury trial rates in FY 2011 and previous years may provide a sense of the actual extent of the reduction in jury trials, of which there would have been approximately 10 to 12 per month. According to the AOC Annual Report, the criminal trial rate in Jefferson County s Circuit Court was more than twice the state average, 3.56% vs. 1.63% in FY 2010, though the absolute number of trials was slightly lower than in the previous three fiscal years. Despite the relatively high trial rate in the Jefferson Circuit Court for criminal cases, % of all criminal cases in the Circuit Court resolved without a trial. It is not clear from any compilation that the postponement rate for felony trials is measured or known. Understanding the postponement rate and the number of trial postponements per case will provide both a better understanding of how well jury week resources are used as well as information for the development of a court-wide postponement policy. Given the scarcity of jury weeks during the past year and the prospect of further economic shortfalls, the postponement of trial dates must be minimized to make the greatest use of the available resources for jury trials. Reducing the number of trial postponements also promotes more efficient use of available resources of both the court and other agencies involved in the criminal justice process and minimizes the disruption of the lives of victims and witnesses when hearings for cases they are involved with are rescheduled. It is against this resource-challenged backdrop that recommendations regarding the development and implementation of a Differentiated Case Management Plan must be Assistance Project: TA Report No American University. February Page 6 of 35

12 designed. By necessity, the working model for planning and implementing such a plan must assume, absent a grant or windfall of resources, that current resource levels among all agencies remain the same, as no increases, and perhaps even further reductions, can be anticipated in the judicial and criminal justice operating budgets for the foreseeable future cuts. B. Other Issues Relating to the Criminal Case Process: Information Technology (IT) System 1. General The following comments were made during the course of site interviews which, while beyond the scope of this technical assistance effort, are reported in the event they are relevant to other improvement initiatives underway. There were numerous complaints about the speed and efficiency of navigating the current information system. There were also numerous complaints about how the county system did not interface with the state system. Without being able to examine the system firsthand, it seems that some enhancements may be possible to allow the systems (county/state) to interface, as well as produce triggers to the Judges for critical events/scheduling. This possibility merits further attention. 2. Sheriff s Information It may be prudent to encourage the jail commander to develop a spreadsheet type setup that captures all inmates in the pre-adjudicatory phases, and track the data/critical events as they see it. The following is an example:. Inmate ID # Date/time of arrival Charges Case Number Attorney? 48/72 hour court hearing # of days to 1st event Jeff L. Smith /11/2010 Theft 2 CR No 01/18/ st call date # of days to 2nd event Prelim date # of days to 3rd event Cont? Yes/No New Date 02/05/ /02/ Yes 06/04/2010 Any type of data produced from the jail ought to be categorized and sortable by assigned Judge if the current IT system will allow data manipulation of this nature. Assistance Project: TA Report No American University. February Page 7 of 35

13 III. DIFFERENTIATED CASE MANAGEMENT (DCM): OVERVIEW A. Emergence of DCM Programs 1. DCM: Summary Overview Differentiated Case Management (DCM) emerged as a best practice for courts in the early 1990 s, building on the development of time standards for the resolution of cases by organizations such as the American Bar Association (e.g. ABA Standards). DCM provides a structured and active approach to caseload management to drive the early and appropriate resolution of the 90 percent or more cases that can be resolved without a trial while, at the same time, preserving adjudication time and court and public resources for those cases that require trial. DCM is characterized by the early differentiation of cases entering the justice system in terms of the nature and extent of judicial/justice system resources they will require. Each case is then assigned to the appropriate case track established within the court system that allows for the performance of requisite pretrial tasks and allocates the appropriate level of judicial and other system resources and time, thereby maximizing the efficient use of available judicial system and other agency resources and minimizing processing delays. Established mechanisms avoid multiple court appearances and assure the timely provision of resources for the expeditious processing and resolution of cases on each track. 2. Caseflow Management and Delay Reduction: General Principles Delay and the scheduling of events in the criminal justice process that are frequently continued with no resolution wastes critically scarce resources and undermines public confidence both in the courts and in the rule of law. Backlogs of criminal and civil caseloads nationwide during the 1970s and 1980s led the American Bar Association (ABA) to develop standards for the management of trial courts, including Standard 2.50, Case Flow Management and Delay Reduction: General Principles From the commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other than reasonably required for pleadings, discovery, and court events, is unacceptable and should be eliminated. To enable just and efficient resolution of cases, the court, not the lawyers or litigants, should control the pace of litigation. A strong judicial commitment is essential to reducing delay and, once achieved, maintaining a current docket. Because courts must be accountable to the public they serve for the fair, effective, efficient, and timely execution of their constitutionally mandated functions, national associations of attorneys, judges, and court managers, including the ABA, the National Assistance Project: TA Report No American University. February Page 8 of 35

14 Association for Court Management (NACM), and the Conference of State Court Administrators (COSCA) established performance standards for courts. The first set of case processing time standards were developed by the American Bar Association in the late 1970s. The ABA adopted a three part standard for felonies: 90% of cases disposed within 120 days of arrest 98% disposed within 180 days of arrest, and 100% of cases disposed within one year of arrest. In August 2011, the Conference of State Court Administrators (COSCA), the Conference of Chief Justices, the American Bar Association and the National Association for Court Management, approved the following Model Time Standards for State Trial Courts: Felony: 75% of cases disposed of within 90 days of arrest 90% of cases disposed of within 180 days of arrest; and 98% of cases disposed of within 365 days of arrest Misdemeanor: 75% of cases disposed of within 60 days of arrest 90% of cases disposed of within 90 days of arrest; and 98% of cases disposed of within 180 days of arrest The Alabama Unified Judicial System has also developed its own set of timeliness and disposition standards using these models as a base; the AOC produces reports that present the state s trial courts (and individual judge s) performance against these statewide performance standards: TIME STANDARDS FOR ALABAMA CIRCUIT COURT CRIMINAL CASES (Tracked from Filing Date) CAPITAL CASES EXCLUDED FROM SUMMARY CALCULATIONS FELONY OTHER 90% resolved in 9 months or less 100% in 12 months or less 90% resolved in 6 months or less 100% in 12 months or less For the last several years, approximately half of all felony cases were resolved at the District Court prior to indictment. It is not clear whether these cases are included in the Felony calculation above. According to the AOC, the average time to disposition from the time the case is filed in the District Court to disposition in the Circuit Court is days. As will be discussed further in Recommendation Two below, the fact that the average time Assistance Project: TA Report No American University. February Page 9 of 35

15 for case disposition is just short of the standard applicable to all cases suggests that a substantial number of cases are disposed of beyond the applicable timeframe prescribed by the standard. Within this framework of developing case processing time standards, DCM emerged in recognition that all cases were not alike in terms of the amount of judicial oversight required for their disposition and that, even with general time standards, some differentiation was appropriate based on the processing requirements for individual cases. By using DCM, systems could be put into place through which those cases that could be disposed of fairly expeditiously could be permitted to proceed through the system at a quicker pace than those requiring more extensive discovery, judicial oversight, and pretrial activity. Under the classic DCM system, three tracks would be established: expedited ; standard ; and complex, each with different timeframes and events, developed under the court s leadership with the active involvement of the prosecution and defense. Cases were to be screened early in the process and, based on the criteria developed for each track, assigned to the appropriate case processing track. Generally a scheduling order would then be issued which governed the events, timeframes and other deadlines for the case disposition process. Since all parties are thereby on notice early in the process as to the applicable timeframes, deadlines and hearings for their respective cases, the presumption has been that they will be prepared and comply. In the small percentage of cases where subsequent developments have warranted a change in track assignment or other modifications of the scheduling order, the modification have generally accommodated. As the experience with DCM matured, many courts introduced additional tracks, geared to the case processing needs of their respective caseloads. B. Objectives of a DCM System DCM is designed to enable the court and other key agencies involved in the case process to make more efficient use of judicial and staff resources and to eliminate unnecessary delays in the criminal justice process. Early screening identifies cases that require substantial judicial involvement as well as those that require less judicial intervention in terms of judicial oversight and litigants preparation time. Although DCM is a technique to enhance management of the case disposition process, it also may reduce the time to disposition. This is especially true in cases which do not require trial, an estimated 95%+ of the caseload in most courts. Earlier attention to these cases can ensure establishing and maintaining reasonable deadlines for case completion which can frequently also result in substantial reductions in the overall time to disposition. Assistance Project: TA Report No American University. February Page 10 of 35

16 C. Benefits of a DCM System When the stakeholders participate in the setting of the deadlines, the process can result in fewer requests for continuance based upon lack of preparation. In a DCM system stakeholders know and understand the expectations of each hearing and deadline and has participated in developing the overall case track structure. Therefore, they are more likely to be prepared for each court event. If the deadlines within the DCM track are realistic and counsel knows the court will enforce them, compliance is far more likely. By tailoring case processing time and procedures to individual cases, DCM improves the quality of the case process. Meaningful early case screening also promotes better attorney preparation and more informed discussion of disputed issues at each event. Although the study team found significant cooperation among the agencies involved in the criminal justice system in Jefferson County, planning and implementation of a DCM program can improve the level of cooperation and collaboration among the stakeholders. This collaboration can facilitate more meaningful and early communication between the attorneys regarding final disposition. As a byproduct of an effective DCM system, litigation costs in several areas can also be expected to be to be reduced. Earlier case disposition and deadlines for completion of key activities and limitations on the amount of discovery for cases within certain tracks or at certain pretrial stages, can reduce the cost of litigation. In addition, the number of excess appearances resulting from continuances as well as uneventful court hearings that do not contribute to case disposition are significantly reduced along with their attendant cost. Other potential benefits of the DCM program include: Reducing the number of jail days for defendants in pretrial custody, particularly when a separate subtrack for detained defendants is instituted within each major track. Reducing the number of bench warrants issued as a result of shorter time between court events and greater certainty that scheduled events will, in fact, occur Savings in clerical and postage costs by eliminating unnecessary continuances and associated notices Savings in prisoner transport costs since the probability that hearings for which detained defendants are transported will, in fact, be conducted, rather than continued, is greatly increased. Savings in witness costs and related police overtime resulting from greater certainty in the court s calendar and the elimination of court events that do not contribute to case disposition. Assistance Project: TA Report No American University. February Page 11 of 35

17 IV. SUMMARY RECOMMENDATIONS The recommendations submitted in this section are presented in two sections: (1) those focusing on planning and developing a DCM program; and (2) those relating to general caseflow management improvement which will strengthen the foundation for the DCM system and are important components of efficient caseflow management. A. Recommendations Relating to the Design of a Criminal DCM Program in Jefferson County The recommendations submitted below focus on the application of DCM principles to the felony caseload at both the District and Circuit Court levels in Jefferson County. By focusing on the felony caseload as it progresses through each court, Birmingham will be able to reap the full benefits of DCM for the felony caseload, including addressing the significant delays that currently exist in the indictment process. Implementing DCM in both the District and Circuit Courts appears feasible in Birmingham because the presiding judge has authority over both courts, the ability to cross-designate judges in both courts, and therefore is in a position to address delay that occurs in both courts a situation that is not common in many other jurisdictions. In proposing that the DCM system be implemented at both the District and Circuit Court levels, the study team is mindful of: (1) the fact that the District Court judges are already overburdened and whatever recommendations are proposed must be designed to promote efficiencies for them and not increased workload; (2) the systems already operating in the District Court allow almost 50% of the felony cases to be resolved at the District Court level; and (3) the focus of any additional initiatives at the District Court level, therefore, needs to be upon reducing the length of time from arrest to final disposition of these cases and ensuring that they are resolved as early as possible in the process. Without prescribing a specific approach, it is the orientation of the study team that consideration might be given to cross-designating Circuit Court judges as District Court judges to permit them to handle pre-indictment disposition dockets of felony cases that are not currently resolving and to reduce the delay in getting other cases to the Grand Jury by holding status conferences for these cases to determine why they aren t being presented. An analysis of the characteristics of those cases that get resolved in the District Court and those which do not will provide a useful framework for further planning in this regard. Assistance Project: TA Report No American University. February Page 12 of 35

18 The recommendations presented below are also designed to provide a structure for implementing a DCM program in Jefferson County. Section V of this report provides a preliminary suggested action plan for designing and implementing the DCM system that draws on the general concepts embodied in these recommendations. Recommendations One: The Presiding Judge should establish a Differentiated Case Management Policy Committee. The first step in planning a DCM program is to identify the agencies and individuals critical to the caseflow process who will be affected by the changes a DCM program introduces. Ideally a policy committee, established by the Presiding Judge, will be formed consisting of the heads, or their designees, of the various criminal justice stakeholder agencies. The committee should be composed of administrative judges from both the circuit and district courts, and representatives from court administration, the prosecutor, the private criminal bar, the Sheriff, the Clerk of Court, TASC and Probation as well as other criminal justice agencies. The policy committee should take the lead in designing the framework for the DCM system the tracks and their criteria, applicable events, deadlines and timeframes. Once the policy committee has been formed and the design of the DCM system has been developed, a task force should be created, drawn from the membership of the agencies represented on the policy committee and supplemented, as appropriate, to guide and oversee the implementation process. In addition to being responsible for the design and implementation of the DCM operational components, the Task Force would also be responsible for monitoring the day-today operations of the DCM program while the Policy Committee would address additional policy issues that may need to be addressed in order to implement the program. The Task Force should meet regularly to review program operations and address implementation issues as they arise. The meetings should occur at least once a month for the first six months of the program. As the program progresses, less frequent meetings will most likely be required. The task force should provide regular reports and summaries to the Policy Committee. Recommendation Two: The DCM policy committee and Task Force should develop a comprehensive understanding of the court s caseload characteristics and how it presently is being disposed. The Policy Committee should obtain and analyze information on the current state of case processing including: recent trends in the number and types of case involving violence; the number, type, and age of pending cases; the reasons for and frequency of continuances in the types of cases in which they commonly occur; the time elapsed from filing to disposition and relevant trends over the last five years; and identification of the points in time and in the case process in which case disposition is most frequently occurring. The data sets needed for Assistance Project: TA Report No American University. February Page 13 of 35

19 analysis of the current caseload, and if possible, several previous years for comparison purposes include (but may not be limited to): Percentage of cases completed within each time period above and number of days required to resolve 25, 50, 75, 90 and 95 percent of the cases; Breakdown by types of offenses charged and convicted, as well as by detained and non-detained status of defendants. Age of the pending caseload. Clearance rate of the criminal caseload. Breakdown of how felony cases resolve once they are filed in the Circuit Court, including cases that are set for trial, whether by jury or court/bench trial; information on dispositions by plea, by stay (stet) or by nolle prosequi would be helpful in determining what types of pretrial events may drive prompt case resolution, again by detention or bond status of the defendant. Breakdown of how felony cases resolve that stay in the District Court, including cases that are set for trial, court/bench trial; information regarding the frequency of dispositions by plea, by stay or by nolle prosequi, or appeal, again by detention or bond status of the defendant. The frequency of trial postponements, number of postponements and, if possible, reason for postponement if noted or maintained as part of the record. 2 As noted earlier, information from the AOC indicates that the average time to disposition from the time the case is filed in District Criminal to disposition in Circuit Court Criminal is days. What is not known, however, is the profile of the distribution of cases that achieves that average. It would, therefore, be useful to determine the percentage of cases completed within each time period and the number of days required to resolve 25, 50, 75, 90 and 95 percent of the cases, as has been presented in the 2010 Annual Report for the Court of Criminal Appeals, Table 4, page 21. An overall average time for case disposition that is less than 3 days short of the Alabama s overall time standard requiring 100% of the caseload to be resolved during that period suggests that a substantial number of cases close beyond the time standard, indicating significant delay in the criminal caseload. An analysis of caseload resolution by types of offense charged and convicted and method of disposition, as 2 These measures correlate with Measures 2 through 5 of the National Center for State Courts CourTools. Further guidance for deriving the data and performing analysis for the DCM planning process can be obtained from the National Center for State Courts website: Assistance Project: TA Report No American University. February Page 14 of 35

20 well as by detained and non-detained status of defendants, can provide useful information to further describe the current case process. Recommendation Three: The number of tracks that will be needed to facilitate timely disposition of all cases should be determined. Most jurisdictions initially institute three tracks. (i.e. non-complex track -- standard or routine track -- complex track [AO may provide a model for this track]). Each track will require individualized time standards, court events, and dispositional goals. It will be important to ensure that each event scheduled will meaningfully contribute to case preparation and disposition. In determining the schedule of court events an important consideration is to ensure that each event scheduled promotes case disposition. It is also essential that the timeframes between events are reasonable and appropriate to adequately and fairly accommodate the processing needs of each case. Recommendation Four: Criteria to be used to identify the classes of criminal cases that will be assigned to particular processing tracks should be developed. It is necessary to identify the factors that determine the level of preparation and court intervention required to achieve a timely and just resolution for each case. It is important that the criteria be established by consensus among the judges and attorneys and others involved in the case flow process as to the appropriate tracks and track characteristics that should make up Jefferson County s DCM system. As part of this process it will be necessary to identify which factors determine the degree of court supervision and the processing time that is necessary to dispose of various cases and the characteristics of cases that should guide their assignment to an appropriate case processing track. Recommendation Five: A Standard Scheduling Order for each track needs to be developed. It is essential that cases assigned to the DCM program proceed to disposition according to predetermined procedures and deadlines for their assigned track. A uniform scheduling order (See Attachment D (1) and (2) for samples) adopted by the Court helps to promote certainty and predictability for the case process, which should also promote adequate preparation by all parties for each scheduled hearing or other event. Deadline extensions should be granted infrequently and only for exceptional circumstances. The scheduling order should also include specific sanctions for noncompliance with the established deadlines. Assistance Project: TA Report No American University. February Page 15 of 35

21 Recommendation Six: An information support system needs to be developed to facilitate monitoring the performance and outcomes of the DCM system. As with all court innovations it is important to identify problems or unanticipated complications early so that modifications in the system, as appropriate, can be made quickly and easily. Therefore an MIS system designed to collect and analyze relevant DCM information is important. Such a system should also generate required notices and calendars. The information system should also permit each judge to identify cases which may exceed the deadlines far enough in advance so they can take action to ensure they stay on schedule. Additionally, the court should have the ability to collect necessary data to identify patterns of requests for extensions as well as to determine whether modifications in the DCM track time frames or events are necessary. To the extent feasible, the case management e- system should support and automate both the Scheduling Order and the calendaring of cases for trial, notices, calendars and other court events, such as motions and pretrial hearings. Given the current financial constraints the Courts are dealing with, if the recommended information system is not feasible at this point, the current statewide MIS system administered by the AOC should be enhanced to permit it to provide as much support for the DCM system as possible. Recommendation Seven: Mechanisms for ongoing communication among all stakeholders in agencies involved in the DCM process need to be established. As noted above, regularly scheduled meetings of the DCM policy committee and DCM task force are necessary during the planning and implementation phases of the DCM system. Interagency communication is also critical on an ongoing basis so that operational and coordination problems can be resolved in a collegial and collaborative manner as they occur. Therefore the system should allow for exchange of information and dialogue as needed. It is important that rules, policies and other written guidelines be developed which articulate the DCM goals and critical elements. The Presiding Judge and the Circuit and District administrative judges need to oversee the implementation of the DCM system as a key aspect of managing the criminal caseload.). The Administrative Judges should meet regularly with officials of the agencies involved, review case management reports, and address operational and coordination problems as they arise. It is important to ensure that the designated judges have the authority to adequately manage the DCM program and to address the operational and coordination issues as they arise. Assistance Project: TA Report No American University. February Page 16 of 35

22 B. Other Recommendations to Promote Improved Caseflow Management Recommendation Eight: The District Attorney s Office should undertake necessary efforts to reduce the current backlog of cases pending indictment through expedited resolution, preindictment screening and other initiatives. The majority of persons interviewed during the site visit reported delays of over one year and sometimes two years for cases to be presented to the grand jury. The District Attorney or his Deputy presents the approximately 400 cases to the Grand Jury during each month s Grand Jury week (presenting approximately 80 cases per day). It is generally perceived that the typical delay -- once a preliminary hearing has been held or waived and the case bound over for indictment -- until the case goes to the grand jury is between six and eight months. The delay appears to be due, in part, to the delays encountered in the forensic testing of contraband; however, backlogs of other cases waiting to be prepared for indictment by the district attorney s office may also be involved. This time period should be measured precisely and sources for this delay examined and eliminated. Analysis of the clearance rate of the criminal caseload -- the percentage difference between the number of cases filed each year and the number of cases resolved -- will also provide perspective on the nature and extent of any backlog that exists in the criminal caseload. In the event this recommendation is implemented, cases presented to the special grand jury should be identified based upon the length of time they have been pending. It should be noted that the number of indicted cases, between 3,000 and 3,500 cases annually is disproportionately large for jurisdictions the size of Jefferson County. It appears that the large number of offenses classified as felonies under the Alabama code may be the driving force behind the high volume of indictments, rather than an unusually high level of violent crime or any particular charging policy by the District Attorney. The Alabama Code provides an avenue for controlling the volume of cases at the Circuit court level by granting the District Court concurrent original jurisdiction over felonies that are not punishable by death, Ala. Code Earlier and improved screening at the District Court level and identification of those cases which can be resolved without referral to the grand jury early may also reduce the grand jury backlog. Assistance Project: TA Report No American University. February Page 17 of 35