CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT OF ALABAMA CRIMINAL DIVISION. BIRMINGHAM DIFFERENTIAL CASE MANAGEMENT PLAN. Draft December 11, 2012 CONTENTS Memorandum To: All Circuit Criminal Judges, All District Criminal Judges, Criminal DCM Planning Committee From J. Scott Vowell, Presiding Judge, December 12, 2012 Re: Criminal DCM Plan Birmingham Differential Case Management Plan. Draft December 11, 2012 Scheduling Order And Trial Setting Standing Discovery Order Proposed Plea Agreement
IN THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT OF ALABAMA CRIMINAL DIVISION BIRMINGHAM DIFFERENTIAL CASE MANAGEMENT PLAN ADOPTED DRAFT December 11, 2012 1
SECTION I: INTRODUCTION Presiding Judge J. Scott Vowell, in an effort to further improve case management in the criminal divisions of the Tenth Judicial Circuit and to build on the success of the Differential Case Management Plan used in the civil divisions of that court, requested technical assistance from the Bureau of Justice Assistance (BJA) in February of 2011. The request made to the BJA asked for assistance through the Criminal Courts Technical Assistance Project (CCTAP) at American University to develop a differential case management (DCM) plan for the criminal divisions of Jefferson County. In March of 2011, Judge John T. Parnham, retired 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 request for technical assistance with Judge Vowell, other judges of the Court, members of the court staff, representatives from the Alabama Administrative Office of Courts (AOC) and other stakeholders. Following that meeting and further discussions between CCTAP and Judge Vowell, a site visit was scheduled for November 1-2, 2011. Judge Parnham; Richard Hoffman; Judge Bruce T. Beaudin, retired from the Superior Court of the District of Columbia and former Director of the D.C. Pretrial Service Agency; Ms. Suzanne Schneider, DCM Coordinator of the Circuit Court for Montgomery County, Maryland; and John Triplett, Director of Court Services in Nez Perce County, Idaho conducted the site visit. In addition, Eric Anderson and Cary McMillan of AOC s Case & Jury Management team assisted with the site visit. During the site visit, the team conducted a review of the current criminal case management process in the criminal divisions of court in Jefferson County (Birmingham Division) and interviewed the judges and their staff, the Circuit Clerk and her office personnel, and other stakeholders. Following the site visit, the consultant team published the Recommendations to the Tenth Judicial Circuit Court in Jefferson County (Birmingham), Alabama Regarding Development of a Criminal Differentiated Case Management (DCM) System in February of 2012. Following the report from CCTAP, Judge Vowell continued efforts to develop a DCM for the criminal divisions of court in Jefferson County. On April 12, 2012, Presiding Judge Scott Vowell appointed a committee of judges, attorneys, and administrators to develop a DCM for the Circuit Court for the Tenth Judicial Circuit, Criminal Division, sitting in Birmingham. The Committee s goal was to improve case management in the criminal division and to reduce the amount of time to disposition in criminal cases. Time standards for the criminal divisions, Circuit Criminal (CC) and District Criminal (DC) have previously been adopted by the Alabama Supreme Court. For felonies (non-capital) and misdemeanors in circuit criminal, 90% of all cases should be adjudicated or otherwise concluded within 9 months from the date of filing in circuit court, and 100% within 12 months. For misdemeanors, traffic and conservation cases in district court, 95% should be adjudicated or otherwise concluded within 4 months of the date of filing and 100% within 6 months. 2
Recent history has shown that the criminal divisions of court in Jefferson County have performed admirably in the area of case management as evidenced by the most recent case statistics in the Circuit Criminal and District Criminal Divisions. The Jefferson County, Birmingham Division, FY 2011 Circuit Criminal filings were 5,554 cases and District Criminal filings were 13,982 cases. The FY 2011 Circuit Criminal dispositions were 5,220 cases and District Criminal dispositions were 13,843 cases. The clearance rate for Circuit Criminal was 94% and District Criminal was 99%. Pending cases at the end of FY 2011 for Circuit Criminal were 3,183 cases and District Criminal were 4355. The average number of days from filing to disposition was 199.52 for Circuit Criminal and 85.42 for District Criminal. Case Currency in Circuit Criminal was 61% and District Criminal was 31%. Even so, the Committee formed by Judge Vowell is committed to solidifying the practices that have generated these results and at the same time strive to improve further by modifying the practices based on their study of current practices locally and proven strategies used by other courts across the country. By establishing the baseline from 2011, the Committee will be able to measure the success of these efforts and will meet annually to review the most recent year s statistics and the observations and comments from the bench and bar to evaluate whether revisions to this DCM are needed. The working group is currently composed of Circuit Judge Robert S. Vance, Jr.; Circuit Judge Laura Petro; Circuit Judge Stephen Wallace; Circuit Clerk Anne Marie Adams; Court Specialist Cindy Collins; Court Administrator Sandra Turner; Wendell Sheffield and Kira Fonteneau, for the criminal defense bar; District Attorney Brandon Falls and Deputy District Attorney John Bower; Eric Anderson and Cary McMillan for AOC; and J. Scott Vowell, Presiding Judge of the Tenth Judicial Circuit. The Criminal DMC Planning Committee Members is composed of the working group in addition to Presiding Circuit Criminal Judge Tommy Nail; Circuit Judge Clyde Jones; Foster Cook, Director, TASK; Jim Sturdivant and Maria Fortune for the criminal defense bar; Sherriff Mike Hale; Captain Ron Eddings; and Administrative Director of Courts Alyce Spruell. It is anticipated that the Committee will continue to function, and to alter or amend the Plan, as circumstances require. Track Assignment SECTION II: PROGRAM STRUCTURE Cases shall be set on the appropriate track in the scheduling order. Each party has 14 days after the date the track assignment has been made to file a motion for change of track assignment. In all tracks, cases where the defendant remains in jail shall take precedence in scheduling for trial. The appropriate track will be assigned based on the criteria below: 3
1. Simple a. Misdemeanor appeals b. Drug Possession Cases Each judge will have one special trial docket per quarter for drug possession cases Bench trial will be used with the consent of the parties to waive their right to a jury trial c. Property offenses d. Fewer than 5 witnesses (prosecution and defense) Time Standards: Scheduling Order and Discovery Order within seven (7) days from the date the judge is notified of the case assignment Discovery shall be exchanged within fourteen (14) days before Arraignment/Pretrial. Both parties shall file a Notice of Availability of Discovery when discovery is made available Arraignment/Pretrial within six (6) weeks after the Scheduling Order Trial within six (6) months of the Arraignment/Pretrial 2. Standard a. Violent Felonies b. Drug Felonies (non possession) c. 5 or more witnesses (prosecution and defense) d. Out-of-state witness Time Standards: Scheduling Order and Discovery Order within seven (7) days from the date the judge is notified of the case assignment Discovery shall be exchanged within fourteen (14) days before Arraignment/Pretrial. Both parties shall file a Notice of Availability of Discovery when discovery is made available Arraignment/Pretrial within six (6) weeks after the Scheduling Order Trial within six (9) months of the Arraignment/Pretrial 3. Complex a. All Homicides b. Mental Competency/Not Guilty by Reason of Mental Disease or Defect c. Sexual Offenses (all) d. Child abuse (all) e. Serious violent felonies (Example - Assault 1). These cases will be assigned to this case track in the judge s discretion following the recommendation of the district attorney s office. f. Cases with multiple defendants 4
g. White collar crimes Time Standards: Once assigned to the complex tract, the case will be handled by a circuit judge Preliminary Hearing Sixty (60) days from initiation of the district criminal case file Discovery Ninety (90) days after preliminary hearing in district criminal case Arraignment/Pretrial Four (4) weeks after the circuit criminal case file is initiated Trial Nine (9) months after arraignment All capital cases will be specially assigned to a circuit judge by the Circuit Criminal Presiding Judge at the initiation of the District Criminal case file pursuant to the Administrative Order governing Capital Cases. All other complex tract cases will be randomly assigned to a circuit court judge. Mental Competency/Not guilty by reason of mental disease defect: In cases where an issue of mental competency or not guilty by reason of mental defect is raised and the case has not already been assigned to the complex track, the district court case may be transferred by the district court judge to the Circuit Criminal Presiding Judge for assignment to a circuit judge. Plea Agreements: SECTION III: ADDITIONAL PROVISIONS Plea offers are made by the district attorney s office at the arraignment/pretrial. The offer shall be presented to the defense attorney(s) and the defendant(s) on the form attached in the Appendix. The plea offer shall be signed by the prosecutor(s), the defense attorney(s), if defendant is represented, and by the defendant. Scheduling order: Continuance Policy: A scheduling order will be entered in every case. An arraignment/pretrial date will be set in the scheduling order. A trial date will be set at the arraignment/pretrial if necessary. Witness and Exhibit lists may be exchanged by the parties at least fourteen (14) days before the date set for trial. The uniform scheduling order is attached in the Appendix. 5
Motions to Continue are disfavored by the court and will only be granted for good cause shown. Reasons that will not be considered good cause include; agreement of the parties, it s the first trial setting, etc. Continuance requests must be submitted by motion at least seven (7) days before trial. Cases may be continued only under extraordinary circumstances, not within control of the parties and not foreseeable. A case may be continued only by the court. In exercising its discretion to grant or deny a motion to continue, the court shall inquire into and be governed by the following factors (the list is not exhaustive): 1. The diligence of counsel, particularly in attempting to avoid the continuance and in bringing the need to the attention of the court and opposing counsel as soon as possible. 2. The age of the case and the nature of any previous continuances or delays attributable to either party. 3. The proximity of the scheduled event. 4. The availability of an earlier date for the conference or trial on which the parties and attorneys could be ready. 5. Whether either side will be prejudiced by a continuance. 6. A notice of conflict is not a valid ground for a continuance. Electronic Filing: All attorneys are required to register for AlaFile pursuant to the Order of the Chief Justice rendered April 12, 2011. If an attorney has made an appearance in a criminal case in the criminal division of the Tenth Judicial Circuit, Birmingham Division, and is not registered for AlaFile, the circuit clerk shall bring that matter to the attention of the Presiding Judge. Following notice to the attorney and an opportunity to register for AlaFile, if the attorney refuses to register for AlaFile, sanctions may be entered by the court. Currently, AlaFile has the capability to accept electronic filing of motions (with the exception of ex parte motions) and notices of appearance in criminal cases Circuit Criminal (CC) and District Criminal (DC). All motions (with the exceptions of ex parte motions) and notices of appearance filed by an attorney shall be filed electronically in all cases unless an exception has been made by the judge assigned to the individual case or an order has been rendered by the presiding judge permitting that attorney to file such documents in paper. Such orders shall only be entered for good cause shown. 6
SCHEDULING ORDER AND TRIAL SETTING As a result of the Arraignment/Pretrial Conference, it is Ordered as follows: 1. This case is assigned to the track. 2. The case is set for (Jury/Non-Jury) trial on at 9:00 a.m., Jefferson County Courthouse, Criminal Justice Center, Birmingham Division. This case shall be disposed of on or before the trial date, unless the court grants a timely filed Motion for Continuance. Such motions are disfavored by the court and will only be granted for good cause shown. Reasons that will not be considered good cause include; agreement of the parties, it s the first trial setting, etc. Continuance requests must be submitted by motion at least seven (7) days before trial. Cases may be continued only under extraordinary circumstances, not within control of the parties and not foreseeable. A case may be continued only by the court. A notice of conflict filing is not considered a Motion to Continue 3. All pending written discovery shall be exchanged within fourteen (14) days prior to the Arraignment/Pretrial Conference. 4. The affirmative defense of Not Guilty by Reason of Mental Disease or Defect shall be disclosed at the Arraignment/Pretrial Conference or as soon as practical. If not disclosed, they shall only be allowed at the discretion of the judge. 5. All pretrial motions shall be filed at least fourteen (14) days prior to the trial date. CIRCUIT JUDGE 7
A Pretrial Hearing has been set in this case on 2012 at 9:00 a.m. STANDING DISCOVERY ORDER This Court in accord with Rule 16 of the Rules of Criminal Procedure sets forth said Rules as follows: DISCOVERY BY THE DEFENDANT (A) Statements of Defendant: The prosecutor shall, within fourteen (14) days before Arraignment/Pretrial Conference, or within such shorter or longer period as may be ordered by the court, on motion for good cause shown: (1) Permit the defendant to inspect and to copy any written or recorded statements made by the defendant to any law enforcement officer, official or employee which are within the possession, custody or control of the state/municipality, the existence of which is known to the prosecutor; and (2) Disclose the substance of any oral statements made by the defendant, before or after arrest, to any law enforcement officer, official or employee which the state/municipality intends to offer in evidence at the trial. (B) Statements of Co-Defendant or Accomplice: The prosecutor shall, within fourteen (14) days before Arraignment/Pretrial Conference, or within such shorter or longer period as may be ordered by the court, on motion for good cause shown: (1) Permit the defendant to inspect and to copy any written or recorded statements made by a co-defendant or accomplice to any law enforcement officer, official or employee which are within the possession, custody or control of the state/municipality, the existence of which is known to the prosecutor and which the state/municipality intends to offer in evidence at the trial; and (2) Disclose the substance of any oral statements made by any such co-defendant or accomplice, before or after arrest, to any law enforcement officer, official or employee which the state/municipality intends to offer in evidence at the trial. (C) Documents and Tangible Objects: The prosecutor shall, within fourteen (14) days before Arraignment/Pretrial Conference, or within such shorter or longer period as may be ordered by the court, on motion for good cause shown, permit the defendant to analyze, inspect, and copy or photograph books, papers, documents, photographs, tangible objects, controlled substances, buildings or places, or portions of any of these things, which are within the possession, custody, or control of the state/municipality and: (1) Which are material to the preparation of the defendant s defense; provided, however, that the defendant shall not be permitted to discover or inspect reports, memoranda, witness lists, or other internal state/municipality documents made by the prosecutor or the prosecutor s agents, or by law enforcement agents in connection with the investigation or prosecution of the case, or statements made by state/municipality witnesses or prospective state/municipality witnesses; 8
(2) Which are intended for use by the state/municipality as evidence at the trial; or (3) Which were obtained from or belong to the defendant. Upon motion of the state/municipality, the court shall impose such conditions or qualifications as may be necessary to protect the chain of custody of evidence, or the prosecutor s, law enforcement officer s, or investigator s work product, or to prevent loss or destruction of such documents or objects. (D) Reports of Examinations and Tests: The prosecutor shall, within fourteen (14) days before Arraignment/Pretrial Conference, or within such shorter or longer period as may be ordered by the court, on motion for good cause shown, permit the defendant to inspect and to copy any results or reports of physical or mental examinations or scientific tests or experiments, if the examinations, tests or experiments were made in connection with the particular case, and the results or reports are within the possession, custody or control of the state/municipality, and their existence is known to the prosecutor. (E) Information Not Discoverable: Except as provided in (a), (b), and (d), the discovery or inspection of reports, memoranda,, witness lists, or other internal state/municipality documents made by the prosecutor or the prosecutor s agents, or by law enforcement agents, in connection with the investigation or prosecution of the case, or of statements made by state/municipality witnesses or prospective state/municipality witnesses, is not authorized. (F) Discovery under Other Provisions of Law: Nothing in Rule 16.1 shall be construed to limit the discovery of exculpatory material or other material to which a defendant is entitled under constitutional provisions or other provision of law. State shall produce all Brady material, which may be favorable to the defendant on the issues of guilt or punishment. (G) 404(B) Prosecutor shall notify the defendant within a reasonable period of time prior to trial of its intention to introduce evidence pursuant to Rule 404(b), A.R.Evid. (H) 609 Prosecutor shall notify the defendant within a reasonable period of time prior to trial of its intention to introduce evidence that a defendant has been convicted of a crime pursuant to Rule 609, A.R.Evid. DISCOVERY BY THE STATE/MUNICIPALITY (A) Documents and Tangible Objects: The prosecutor shall, within fourteen (14) days before Arraignment/Pretrial Conference, or within such shorter or longer period as may be ordered by the court, on motion for good cause shown, permit the state/municipality to analyze, inspect, and copy or photograph books, papers, documents, photographs, tangible objects, buildings, places, or portions of any of these things which are within the possession, custody, or control of the defendant and which the defendant intends to introduce in evidence at the trial. (B) Personal Physical Evidence: Upon motion of the state/municipality and solely in connection with the particular offense with which the defendant is charged, the court shall order the defendant to: 9
(1) Appear in a line-up; (2) Speak for identification by witnesses; (3) Be fingerprinted, palm-printed, foot-printed, or voice-printed; (4) Pose for photographs not involving reenactment of an event; (5) Try on clothing; (6) Permit the taking of samples of defendant s hair, blood, saliva, urine, or other specified materials which involve no unreasonable intrusions into the body; (7) Provide specimens of defendant s handwriting; or (8) Submit to a reasonable physical inspection or medical examination of defendant s body, but such inspection will not include a psychiatric or psychological examination unless such psychiatric or psychological examination is authorized under the provisions of Rule 11.2(a)(1) and (2), Rule 25.4 or Rule 26.4. The defendant shall be entitled to the presence of counsel at the taking of such evidence. This section shall supplement and not limit any other procedures established by law. (C) Reports of Examinations and Tests: The prosecutor shall, within fourteen (14) days before Arraignment/Pretrial Conference, or within such shorter or longer period as may be ordered by the court, on motion for good cause shown, permit the state/municipality to inspect and to copy any results of reports or physical or mental examinations, and of scientific tests or experiments made in connection with the particular case which are in the possession or control of the defendant and which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, if the results or reports relate to the witness s testimony. (D) Information not Discoverable Except as to scientific or medical reports, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or the defendant s attorneys or defendant s agents in connection with the investigation or defense of the case; nor shall this rule authorize discovery or inspection of statements made by the defendant s attorneys or agents, or statements made by state/municipality or defense witnesses or prospective state/municipality or defense witnesses to the defendant, the defendant s attorneys or agents. CONTINUING DUTY TO DISCLOSE If prior to or during trial a party discovers additional evidence or decides to use additional evidence, which evidence has been subject to discovery under this rule, that party shall promptly notify the court and the opposing party of the existence of the additional evidence. 10
CONDITIONS OF DISCOVERY The court expects that counsel for both sides shall make every good faith effort to comply with the letter and spirit of this Standing Order. However, the court also contemplates that certain cases will be too complex and/or otherwise unique for such cases to come within the letter and spirit of this Standing Order. Therefore, both parties are required to file as soon as practicable any additional discovery requests with the Court. PRETRIAL ORDERS All pretrial motions and other matters not covered or addressed by this Standing Order must be filed within a reasonable period of time prior to trial. PROTECTIVE ORDERS (A) Showing: Upon a sufficient showing, the court shall at any time order that the discovery, examination, or inspection permitted by this rule be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit a party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. (B) Effect of Protective Order: If the court enters an order granting relief following such a showing, the entire text of the party s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. STEPHEN C. WALLACE CIRCUIT JUDGE 11
PROPOSED PLEA AGREEMENT Defendant s Name Case No Indictment Charge Amended Charge Case No Indictment Charge Amended Charge Case No Indictment Charge Amended Charge Prior Felony Convictions: Sentence Range under Habitual Felony Offender Act: Sentence Range under Voluntary Guidelines: Straight mos to mos Split Range mos to mos Prison: In/Out (Circle One) Terms of Plea Agreement: Cases or Counts to be Dismissed as part of Plea Agreement: Restitution: $ Case No. Restitution: $ Case No. Payable to: Payable to: Deputy District Attorney: Date ********************************************************************* I have reviewed and discussed this offer with my client. Defense Attorney: Date: I have discussed the offer with my attorney and understand that all conditions of the plea agreement are set out above in this single document. Moreover, this is the entirety of the agreement and no other promises have been made. I wish to: Accept the offer Date: Defendant s Signature Reject the offer Date: Defendant s Signature PRINTED DEFENDANT S NAME 12