Equal Justice
Inequality: Low-income Utahns feel deprived of access to courts, legal advice.
Every day, Anne Milne, director of Utah Legal Services, copes with the volatile reactions of Utahns denied access to courts.
She warns that a vigilante attitude is replacing people's faith in the justice system.
"The impact of imbalance is greatest on those with limited income. If their car is repossessed illegally, if they are unrightfully evicted, if they can't get divorced or if they aren't receiving the Social Security benefits they deserve, their world can literally collapse," she said.
The disparity between the `haves" and the "have-nots" is dramatically increasing. With that disparity, the anger and frustration intensifies.
"Those whose legal needs are rejected become bitter, disillusioned and heartbroken. Some threaten they are going to get a gun and settle their dispute. Many attempt suicide. Some succeed," she said.
A backlog of more than 600 cases delays court hearings for low-income people. Many have to wait more than eight months to see an attorney on divorce, custody and child visitation matters. Women and children can't escape a home where there is violence or receive a court order for protection.
A family of four earning $1,100 or less a month can receive free legal help. But people in the working class are becoming increasingly bitter about burgeoning legal costs.
Emily Griff, a divorced mother of two, thought justice would be more accessible once she broke the poverty cycle and entered the working world. But when she went to hire an attorney to settle a landlord dispute, she was shocked to learn a consultation would cost as much as groceries and a month's rent. When she turned to Utah Legal Services, she was informed she earned $40 too much to qualify for government assistance.
"Justice should be available to everyone. You shouldn't have to purchase justice. The courthouse doors are locked to me and my children."'
As chairwoman of the Gender and Justice Task Force, Aileen H. Clyde heard hundreds of women testify about bias they have faced in Utah courts. She was deeply disturbed by what she heard from all socioeconomic backgrounds.
"Sadly, there is bias in the courts, but it's not unique to our Utah culture. Unfortunately, it's an attitude that is pervasive nationwide - rooted in the time when women were considered property," she said.
"The fact is that justice varies according to what you can afford. Attorneys know they are more likely to get paid well by male clients. Fair access to court is too frequently determined by the pocketbook."
- RECOMMENDATIONS:
-Establish a hot line to answer legal questions.
-Require mandatory mediation in certain cases, outside the courthouse.
-Hold court during the evening or on weekends.
-Adopt minimum time standards to speed up civil cases.
-Encourage more female appointments to the bench. Educate judges about bias.
-Have the Utah State Bar put more emphasis on members donating pro bono work.
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Victim Rights
Victims: Secure waiting areas at trial, more sensitivity urged for those who've already been hurt.
In many Utah courtrooms, child witnesses sit directly across from their accused abuser, members of opposing gangs try to intimidate each other in hallways and rape victims meet defendants face to face.
Throughout the murder trial in the Coalville courtroom, members of the Singer and Swapp families attempted to talk with Ann House - widow of law enforcement official Fred House, who was killed in the explosive climax to the standoff at the Singer home in 1988.
After the verdict, House was alone in the courthouse for a few minutes. Heidi Swapp told her there that Fred House had really been killed by the police.
Without a separate room to retreat to, families can't escape the threat of confrontation, said Dawn House, Fred's sister.
"A trial is a time when all your grief and emotions are on the surface. The family of the victim is worried about not breaking down, about being strong. You feel scrutinized by the public. You feel invaded. There was no place we could go in that courthouse without finding the Singers and the Swapps."
Third District Judge Michael Murphy, who presided over the Coalville trial, felt the pressure of keeping the families of the defendants and victims separate within a crowded, outdated courtroom.
Murphy, a member of the Commission of Justice in the 21st Century, advocates that separate and secure waiting areas be provided in courthouses to offer needed reprieve.
Without victims, prosecutors don't have much to do, said 3rd District Judge Scott Daniels.
But ironically, victims have become the forgotten component of a complex criminal system that sometimes treats them with astounding callousness and disregard, he said.
Judges are not supposed to accept a plea bargain until the prosecutor confirms in writing that victims have been consulted. The victim can't veto the negotiation. But the victim supposedly has the right to know, said Daniels, chairman of the Governor's Council on Victims and member of the justice commission.
In cases involving child victims, court dates should not be postponed without good reason and without a written explanation. It is very traumatic for a young victim to cope emotionally when a case is being dragged through the justice system.
But too frequently, these rights are ignored or misunderstood.
Few victims stand up and testify against perpetrators during the sentencing hearings because most don't know it is their right, said Daniels.
Prosecutor Ernie Jones encourages victims to show up for sentencings. When victims do speak up, it makes a difference - a more severe sentence is usually imposed.
"Having victims and their families present reminds us why we're here," he said. "It may be easier for me as a prosecutor to distance myself from the victim because the case is so heartwrenching. But I need to remain sensitive to their suffering. I need to have them involved."
- RECOMMENDATION: The role of victims should be increased in prosecution and sentencing decisions. Continued efforts should be made to provide secure waiting areas in the courthouse, separating victims, defendants and their respective families.
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Domestic Law
Family law: Teenager wishes she'd had a legal adviser to help her through parents' divorce.
Fifteen-year-old Kim Shelley waited for months before telling her friends that her dad had moved out. Living in a Utah community where d-i-v-o-r-c-e was still talked about in whispers, Kim worried that her friends would "drop" her.
But what scared her most was that she would have to sit on a witness stand in court and tell a judge which parent she would choose to live with. She didn't want to hurt either one.
Her mom and dad each hired attorneys to be on their side during the divorce. She wished she had an adult assigned to her by the courts to answer her questions about her legal rights - to be on her side.
She wants Utah courts to extend the volunteer guardian ad litem program to domestic cases. Currently, these volunteers are assigned to represent and protect children's legal rights in abuse and neglect cases only.
In divorce, there is no real winner or loser. But many believe the legal system makes losers of both defendant and plaintiff.
A series of polls conducted for the "Doing Utah Justice" project shows a solid 87 percent of respondents favor alternatives to handling such cases in court.
Taking divorce cases out of the courtroom into mediation will not remove the hurt, vindictiveness and manipulation in the painful process of dividing families. But the poll sends the message that the concept of fault that founded the present adversarial system is outdated and destructive.
Sharon Donovan, a member of the justice commission who has practiced as a domestic-case lawyer for 11 years, favors increased use of mediation (where an objective third party serves as a referee in helping a couple reach a compromise) in uncomplicated cases. Sometimes involvement of attorneys in the early stages can fuel a negative situation, polarizing each side into a galvanized position.
But mediators must protect women who have been battered or emotionally abused, who could be brow-beaten into settling on almost anything to get out of a marriage, she said.
"There are cases where a woman needs an experienced advocate."
- RECOMMENDATIONS:
-Expand free attorney services to represent children in divorce.
-Provide access to mediation through the courts.
-Simplify uncontested divorces so an attorney would not be required.
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Juvenile Law
Juveniles: Judge says focus must be on helping and changing rather than punishing kids in trouble.
In a single month this summer, 12 juveniles were booked in gang-related homicides - a disturbing new record for Utah.
Trying to see beneath violent and bizarre behavior to the troubled hearts of adolescents is the focus of juvenile courts.
"Gang violence is an attempt by confused kids to find love," said Judge Sharon McCully, 3rd District Juvenile Court. "While they know killing is wrong, it is more important to prove themselves, to secure their position within their gang family by randomly shooting a kid dressed in the garb of an opposing gang."
What distinguishes McCully's courtroom from an adult court is the emphasis on treatment and intent, rather than punishment. What can the court do to prevent a mixed-up teen from becoming a lifelong criminal? Did the youth knowingly commit the crime?
McCully favors a proposal by the Commission of Justice in the 21st Century to merge the juvenile court into a single, trial court system, but only if the "focus of helping and changing kids remains the priority and special services aren't reduced."
It's a recommendation that would affect more than 20,000 juveniles who are referred to court annually. Forty percent of Utah youths have contact with juvenile court.
Because a juvenile's unlawful behavior is usually related to family problems, it makes sense to merge juvenile court into a fully integrated district court. Currently, families hop from district court to juvenile court on related matters, creating havoc and twice the legal fees. With one family court, one judge could handle all matters - and gain valuable insight into a child's behavior. For instance, if a parent appears before a judge for abuse, it's easier to understand why his or her child may end up in court on charges for acting out, she said.
"The public doesn't understand the juvenile court because the names of a juveniles are fiercely guarded to protect youths from public exposure. Consequently, the `mystery' court suffers from a lack of resources. Including juvenile court under the umbrella of an adult trial court would improve public perception and hopefully increase funds," she said.
- RECOMMENDATION: Merge Utah's juvenile courts into a single-level adult system, creating a family court to better serve families.
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Medical Malpractice
Medicine: Doctor says current system for handling malpractice cases has created crisis.
A young woman who did poorly on her law-school entrance exams attempted to sue her mother's obstetrician for poor delivery, claiming diminished intellectual ability.
A tubal ligation, a process where a woman's reproductive tubes are tied to prevent pregnancy, is cynically referred to by physicians as a "tubal litigation" because the procedure fails one in a thousand times - inevitably resulting in a wrongful-life suit.
The interference of the lawyer in the doctor's office has created a crisis, contends Dr. John C. Nelson, past president of the Utah Medical Association.
"I feel like there is a telescopic sight aimed at my head with a hair trigger and someone at the other side of that trigger who is a member of legal profession ready to squeeze - irrespective of which way I decide," he said.
When Nelson, an obstetrician and gynecologist, began practicing in 1975, his professional liability premium was $300 annually. Today he pays $35,000 a year.
A substantial amount of the high cost of medical care is due to unnecessary tests ordered by doctors practicing defensive medicine, he said.
Doctors aren't blameless. Nelson doesn't deny there are legitimate claims of malpractice. Many patients harmed by poor medical care don't receive fair compensation.
But the current system discourages cases involving less than $50,000. Jury awards are inconsistent, resembling a lottery. Some cases take up to eight years to resolve. And juries are not capable of determining fault involving sophisticated medical techniques, Nelson argues.
Attorney Peter Billings Sr. shares Nelson's concern about malpractice litigation. As a member of the Commission of Justice in the 21st Century, Billings supports the recommendation to try mandatory arbitration on a three-year experimental basis by changing the rules of the court.
"We're not getting rid of the role of attorneys, we're just trying to make the process more expeditious and less costly," said Billings. "Hopefully, this is a remedy that is more fair to patients and physicians - and, ultimately, all Utahns as consumers."
- RECOMMENDATION: Remove medical malpractice suits from the courtroom into mandatory arbitration. Instead of a judge or jury, cases would be decided by a panel of trained arbitrators - a lawyer, a physician and a lay person - within a year.
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Technology
Technology: Computers may help speed up justice and relieve crowded dockets.
Consider this vision of future justice: An attorney enters the facts of a case into a computer. Within minutes, a perfect, dispassionate decision is reached by a machine that has replaced the judge.
Lie detectors are perfected, eliminating any question about who is lying and who is telling the truth. (Wouldn't the Senate have appreciated this during the recent Clarence Thomas confirmation hearings? Then again, maybe not . . .) Decisions of ethics accompany decisions regarding advanced technology, says attorney Randy Dryer.
Computer justice isn't a concept that is decades away. This kind of "artificial intelligence" is being used by Detroit judges to handle a staggering criminal docket. "Machine judges" are performing the same operations that humans perform. In Detroit, computers assist judges by determining a presentence score - based on prior record, severity of crime, etc. The computer spits out a recommendation for prison time if the defendant is convicted. Confronted with this information, many defendants choose to accept a plea bargain - saving court trial time.
"The trick of technology is to meet the demands of a changing society but avoid intruding on sound judgment," said Dryer. "But the Utah courts must change, or the system will lose the battle of providing speedy justice."
Dryer, who was chairman of the commission's study of technology, realizes the controversy surrounding proposals but believes progress will bring savings.
Using video cameras for the official record makes court reporters, who make a living producing a written transcript of proceedings, especially nervous. Kentucky courts have essentially replaced live reporters with machines.
"Machines are not infallible," said Nora Worthen, supervising court reporter for 3rd District Court. "They can break down or fail to pick up mumbled words." Cameras may taint the impartiality of appellate judges who may be unfairly influenced by videotape recording because it records the "emotions" of a trial, she warns. "The written word has no emotion to distract a judge."
- RECOMMENDATION: To ultimately reduce court costs and deliver speedy justice, the following technologies should be adapted:
-Video arraignments: Defendants remain in jail but stand before a camera in a secured room to answer a judge's questions.
-Videotape recording vs. computer-aided transcription by court reporter: Both should be used on an experimental basis to determine which is most efficient.
-Video conferencing would save judges and attorneys statewide travel.
-Facsimile transmission of documents: Filing electronically.
-Touch-screen computers to file documents such as small-claims suits or child support without the assistance of an attorney.