“Rarely has any public institution been held in such open contempt by those who work for it and those who pass through it. Judges call it a sham and a fraud. Lawyers say that justice is unpredictable at best, and that the tawdry surroundings and atmosphere of deal-making deprive the court of even a semblance of justice.”

David Anderson

“The adversary process often achieves truth only as a convenience, a by-product, or an accidental approximation.”

Former U.S. District Court Judge Marvin E. Frankel

17,000 courts35,000 judges250,000 total personnel155 million cases/year (roughly a 1:2 ratio)$20 billion annual budget nationwide (some cross-over costs though)

Basic Court Structure- Minor Trial Courts- Major Trial Courts- Appellate Courts- Supreme Courts- Misc. Courts

Hierarchical Judicial reviewOverlaid system (Federal and states)

Hierarchical Structure

Supreme Court

Appellate Court

District Court (Major Trial Court)

County Court (Minor Trial Court)

Minor Trial CourtsUsually called County Courts. Roughly 90% of the

criminalcase workload is handled by the minor trial courts.

Typical jurisdiction includes:Initial appearancesPreliminary hearingsMisdemeanor trialsTraffic and parking casesCivil cases involving less than $52,000 (Nebraska)Often serve as the local juvenile court

58 County Court Judges serving 12 judicial districts in Nebraska

Major Trial CourtsUsually called District Courts. Typical jurisdiction includes:ArraignmentsFelony trialsCivil cases involving more than $52,000

(Nebraska)Appeals from the minor courts

Court of fact (substantive court) vs. court of law (procedural court) principle

Appellate CourtsHandles appeals from the lower courtsNo juryGenerally sit “in division”Adjudicate the law

Supreme CourtsHandles appeals from the lower courtsNo juryGenerally sit “en banc”Adjudicate the law

Misc. CourtsJuvenile courtsSmall claims courtsCourts of industrial relationsTax courtsCustoms courtsCopyright and patent courtsBankruptcy courtsMilitary courtsWorkers compensation courts Regulatory agencies have judicial bodies

Administrative SupportClerk of the courts

Maintain case histories/statistical reportingMonitor and schedule casesDocument preparationCase indexingIssues summonsesNotifies witnesses, attorneys and other

principle parties

Administrative SupportAdministrative office of the courts

Develop training programsDevelop and administer personnel systemsBudget preparationDevelop and revise legal formsRecords managementStatistical reporting

Federal Court SystemMinor Trial Courts – U.S. Magistrate’s Court:

- Roughly 560 U.S. Magistrates - Serve 8 years terms - Appointed by Federal District judges - Handles 1 million + cases a year nationwide - Salary of $185,000/year

Federal Court SystemMajor Trial Courts – U.S. District Court:

- Roughly 1,200 U.S. District Court judges - * 677 Full-time District Court judges- * roughly 500 Senior Status District Court judges- Serve for life- Appointed by the President- Salary of $201,100/year- 94 judicial districts- Handles 370,000 cases a year nationwide (80% civil – 20% criminal), plus roughly 1 million bankruptcy cases

Federal Court System: U.S. District Court JurisdictionFederal crimesCivil cases (patent rights, copyright,

bankruptcy, anti-trust)U.S. a party in a suitAppeals from lower courtsCivil rights violations (Title 7)Diversive Jurisdiction (two or more parties

from two or more states involving a dispute of $75,000 or more)

Federal Court SystemAppellate Courts – U.S. Courts of Appeal:

- 179 U.S. Appellate Court judges- Serve for life- Appointed by the President- Salary of $213,300/year

- Usually sit “in division” - 13 U.S. Appellate Court circuits or districts

- Nebraska is in the 8th circuit (based in St. Louis) - Handles roughly 55,000 cases a year nationwide - Court of law (vs. court of fact)

Federal Court SystemU.S. Supreme Court:

- 9 U.S. Supreme Court Justices (as few as 5; as many as 10)

- Serve for life- Appointed by the President- Salary of $2446,800/year for Associate Justices- Salary of $258,100/year for the Chief Justice

- Usually sits “en banc” - Roughly 10,000 certiorari requests received annually* Court grants “cert” to roughly 75-80 cases* Full written decisions in roughly 50-60 cases

- Court of law (vs. court of fact)

Chief Justice’s PowersPresides in open court and in conferencesSpeaks first, speaks lastSets the agendaVotes lastAssigns the opinion writing duties if votes

with the majorityCirculates a list of “cert denied” suggestions

without conference discussion. Takes 4 votes to remove the case from the list and be heard.

Chief Justice’s PowersDetermines the order in which cases are

heardDetermines the split when sit in divisionDetermines which cases will be heard by

which groupAppointed for life (real power in government

is longevity in office, ala a King)Paid more than the other Justices!

($255,500 vs. $244,400)

Supreme Court Jurisdiction:Article III, Section 2Foreign DiplomatsState vs. StateState vs. U.S./U.S. vs. StateForeign country vs. State/State vs. Foreign

countryForeign country vs. U.S./U.S. vs. Foreign

country

Original, non-exclusive, non-concurrent jurisdiction

Supreme Court Justices:By SeniorityJohn Roberts, ChiefAnthony KennedyClarence ThomasRuth Bader GinsburgStephen BreyerSamuel A. Alito, Jr.Sonia Sotomayor Elena Kagan (112th Supreme Court Justice)Open position

Misc. Federal CourtsU.S. Tax CourtsU.S. Customs CourtsU.S. Court of Customs and Patent AppealsU.S. Court of ClaimsU.S. Court of Military Appeals

International CourtsInternational Court of JusticeInternational Criminal CourtPermanent Court of Arbitration

International CourtsInternational Court of Justice (“World

Court”) - Established in 1946 - Meets in The Hague - Financed by the United Nations - 15 judges elected for 9 year terms by the

U.N. General Assembly - Deals with 22 international crimes

22 International Crimes in the jurisdiction of the International Court of Justice1. aggression (crime against peace)2. war crimes3. unlawful use of weapons/unlawful emplacement of weapon4. crimes against humanity5. genocide6. racial discrimination and apartheid7. slavery and related crimes8. torture9. unlawful medical experimentation10. piracy11. aircraft hijacking12. threat and use of force against internationally protected persons13. taking of civilian hostages14. drug offenses15. international traffic in obscene publications16. destruction and/or theft of national treasures17. environmental protection18. theft of nuclear materials19. unlawful use of the mails20. interference with submarine cables21. falsification and counterfeiting22. bribery of foreign public officials

International Courts…continuedPermanent Court of Arbitration

- Established in 1899 - Meets in The Hague - Free standing body (not affiliated with the

United Nations) - Provides services for the resolution of disputes

involving states, intergovernmental organizations, and private parties (treaty violations, boundary disputes, international investment, international trade)

International Courts…continuedInternational Criminal Court (“War Crimes Tribunal”)

- Established in 1998 - Based in The Hague - Free standing body (not affiliated with the United Nations) - 18 judges elected for 9 year terms by the nations who are a

party to the Court - Deals with: * war against peace/war of aggression* genocide* crimes against humanity* war crimes - Two temporary “War Crimes Tribunals” (Yugoslavia, Rwanda)

International Courts:SummaryInternational Court of Justice (“World Court”)Permanent Court of ArbitrationInternational Criminal Court (“War Crimes

Tribunal”)

All are based in The HagueThe World Court is run under the auspices of the

United Nations, but the other two are free-standing entites.

Selection of Judges – State LevelGubernatorial appointmentLegislative electionPartisan electionNon-Partisan electionMissouri Plan

* Bi-lateral Commission identifies a small pool of candidates

* Gubernatorial appointment* Periodic unilateral elections

Selection of Judges - Federal LevelServe for lifePresident appoints, Senate confirmsSenatorial Courtesy RuleSupreme Court justice selection criteria:

- Political reward - Desire to maintain good relations with interest

groups - Ideology (not a big factor) - Ability never really a factor (can hire top

quality clerks)

Removing Federal Judges from OfficeDirect

- Die - Retire - Impeached

Indirect - Informal pressure to resign - Prosecuted/convicted (serious misdemeanor or

felony)

Removing State Judges from OfficeDirect

- Die - Retire - Impeached - Judicial Misconduct Board - Elect a new one at the next election/vote no if in a

Missouri Plan state - Initiative/Recall/Referendum

Indirect - Informal pressure to resign - Prosecuted/convicted (serious misdemeanor or

felony) - Bar Association action

Defense CounselPublic DefendersCourt AppointedPrivate Attorney

Prosecuting AttorneysState and Local Level

- City Attorney - County Attorney - District Attorney - State Attorney General

Federal Level - District Attorney - Attorney General - Solicitor General

Sentencing Disparity ReformsMove to a determinate sentencing modelConsultation among judges

- Formal - Informal

Sentencing seminarsShare sentencing informationAppellate review of sentencesCourt Watch projects

Case Backlogs and DelaysDelay in getting to trialLong trials

Problems for prosecutors and defenseTestilying/the jurisprudence of lying

Case Backlog and Delay ReformsGreater use of associate judgesExpand the use of pretrial hearings

and conferencesOne day trialsSet the precise court date at the

arraignment/initial appearanceIndividualized docket

Case Backlog and Delay Reforms…continuedNo plea bargaining within 24 hours of

trialReduce the number of continuances

allowed (virtually none within 24 hours of trial)

Extend court hoursTrial festivalsBorrow judges from rural areas

Case Backlog and Delay Reforms…continuedRent a judge/Special Masters (civil

options)Increase the number of waiverable

offenses (and utilize the day fine concept)

Adopt the “English Rule”Greater use of community courts

Community Courts/Neighborhood Justice Centers

Sent to the Community Court by: a. Police in lieu of arrest b. Prosecutors in lieu of a complaint

being authorized c. Judges in lieu of trial d. Go voluntarily

Community Courts/Neighborhood Justice Centers…continuedSuspect and victim appear before a board of citizens drawnfrom the local neighborhood who listen to the case. a. Citizen board members are not paid. b. No legal representation is allowed. c. The Community Court proceeds in an informal fashion.

d. The Community Courts utilizes either the:

1. Arbitration Model (Didactic/Fisher model) – hear both sides and render a decision 2. Mediation Model (Danzig model) – actively

become involved with dissenting parties and help

work out a solution

Community Courts/Neighborhood Justice Centers…continuedThe Community Court reaches a mutually agreeable, non-legally binding resolution. That decisions nearly always required both sides in the dispute to engage in some form ofcompensation/restitution (reflects the mutual culpability principle).

If no agreeable conclusion is reached, or, if one party fails to fulfill the community court assignment, the case can go

forward into the regular judicial system, but this rarely happens.Upward of 90% of the cases are mutually resolved at theCommunity Court hearing, and 90% of those resolved casesresult in both parties completing their Community Court assignments, yielding an aggregate 80% success rate.

Community Courts/Neighborhood Justice Centers…continued

The justice officials who refer matters to theCommunity Courts, agree in advance not to continue with the case and to drop all

charges, if the matter is successfully resolved (the

Community Court resolution is adhered to by all parties involved)

Community Courts/Neighborhood Justice Centers…continued

The successful resolution rate for community courts

(80%) is far higher than the successful resolution

rate of regular courts due to two factors: 1. Creation principle (people support what

they create) 2. Mutual culpability/compensation principle

Community Courts/Neighborhood Justice Centers: Procedural Summary

Both parties asked to appear in court – 90% of the timeA mutually agreeable resolution in achieved during the

Community Court hearing – 90% of the timeReflecting the mutual culpability/compensation reality,

both parties required to engage in some kind of restitution/compensation – 90% of the time

Both parties complete their court assigned sanction/sentence – 90% of the time

Points #2 and #4 yield a successful resolution rate of 80%.

Advantages of Community Courts

1. Convenience:a. timeb. place

2. Speed in which the disputes are addressed3. Frees up judicial system personnel4. Reduces court backlog5. Jail overcrowding is eased6. Community safety valve7. Disputes are resolved8. Promotes community cohesiveness

Problems with Community CourtsThe American due process model adheres to the principle of procedural consistency and uniformity, and utilizes objective standards and substantive law which yields, in aggregate and in theory, a high measure of social justice, equity and fairness. The Community Court, in contrast, adheres to the informal, fragmented, de-centralized model which yields high level of. We moved away from thatmodel 200 plus year ago. Why do we want to return to it now?

Problems with Community Courts…continued

Substantive and procedural legal concerns:1. The legal proceedings utilized by the Community Courts are not consistent, but rather vary from court to court, from

neighborhood to neighborhood based on local legal and socio-politico-economic cultures, and with the attitudes and perspectives of the individual community court board member.

2. There are no consistent set of rights that victims nor offender have in the Community Court proceedings.

3. Substantive outcomes vary tremendously from court to court. The Community Courts do resolve cases faster than do the regular courts, but at a cost of sentencing/outcome variation, even disparity.

Problems with Community Courts…continued4. Who can go to the Community Court? There are no objective,

substantive legal standards.

5. What appellate options are there for those who are denied access to this dispute resolution option and are being forced

into the regular judicial system?

6. Can statements made in the Community court be used in a regular court trial?

This kind of informality opens the door to all kinds of potential forabuse – bribery, favoritism, racial and Ethnic discrimination. We tried this once, and it did not work.

Problems with Community Courts…continued

The philosophic assumption behind the use of Community Courts is that processing people through the standard judicial system, is a bad thing. Generally that is true, but it is not

always the case. There are times when regular courtintervention is useful.

Drawn from Malcolm Feely, Court Reform on Trial, 1983.

The court system is not capable of solving any nations’ crime problems. While some proposed reforms can have a positive impact, they should be viewed as nothing more than new ways of holding our fingers in the dike…just buying time. Fundamental changes anynations’ crime and delinquency problems, require fundamental changes in that society’s socio-economic foundations and in its core institutions.

Nuremberg TrialsLondon Charter/International Military

Tribunal22 tried19 guilty12 hung3 received life sentencesVictor’s Justice

Nuremberg Trial IssuesNo legal precedentMilitary trials (not civilian trials)Violated separation of powers principlesViolated the principle of ex post factoViolated German sovereigntyIgnored the Superior Order principle

Primary Jurisdiction of theInternational Criminal CourtWar crimes - Acts of violence against civilian populations or prisoners of war by military personnel in violation of the laws and customs of war, not justified

by military necessity; Acts involving weapons or military methods of unusual cruelty or devastation. Violence is the nature of warfare, though it is generally recognized that violence should be limited to military personnel and military targets.

Crime Against Peace/Crimes of Aggression - Acts based on the distinction between offensive and defensive warfare. Offensive wars are illegal, but wars in defense of one’s country and sovereignty are considered legal.

Crime Against Humanity - Acts that violate concepts of natural law and natural rights of human beings as human beings. Genocide (the deliberate extermination of one class, race, or religious group by another) is listedseparately but is often considered a component of this category.

Four Models of International Justice1. Victor’s Justice – Nuremberg

2. International Tribunals – a. International Criminal Court b. International Court of Justice c. Permanent Court of Arbitration d. European Court of Human Rights

3. Hybrid tribunals with a mixture of internal and external representation:a. East Timor – more external

b. Sierra Leone – more of an even mix c. Cambodia – more internal

4. Internal tribunals or Truth Commissions – Argentina, Chile, South Africa