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Justice should not wait for a perfect world

In dictatorial regimes, leaders often promise democratic elections – just as soon as conditions improve. Those elections rarely occur.

Michael L. Stout

Michael L. Stout

In New Mexico, a wine bar displays a sign, “Free Wine Tomorrow.” Free wine is never served.

In Albuquerque, the Journal takes a “wait ’til tomorrow” approach to the District Court’s plan to improve the felony charging system. That long-considered – but now delayed – plan reduces the use of grand juries in favor of preliminary hearings for determining whether charges should proceed. Acknowledging “there are compelling reasons to use preliminary hearings instead of grand juries,” the Journal nonetheless labels the plan a “Recipe for Disaster”. “In a perfect world,” it says, “it would be worth going down that road. But this isn’t a perfect world.”

Exactly when will that perfect world be available? And why have many jurisdictions in New Mexico been close enough to perfection to have used preliminary hearings for decades while Bernalillo County, among a few others, has taken the more wasteful, inefficient and unjust path?

A “perfect world” is an aspiration to be worked toward, not a thing we wait to be dropped from the heavens. Reform is a process and the proper process here is to follow the judges’ lead for institutional improvement.

Chief Judge (Nan) Nash and Presiding Criminal Judge (Charles) Brown lay out pages of convincing explanation for preferring preliminary hearings over grand juries. For starters, jurisdictions worldwide are eliminating grand juries because they are not a buffer between the citizen and the government as envisioned, but instead are a tool of the prosecutor to generate charges without an objective assessment. They point out grand juries are “wasteful, expensive, time consuming and incapable of producing accurate results.”

Conversely, the judges note preliminary hearings increase public confidence in the system because they promote transparency and allow screening of cases by both sides. Preliminary hearings “prevent hasty, malicious, improvident and oppressive prosecutions.”

Prosecutors object to change. They’ve become accustomed to the ease of bringing charges in a secret proceeding where there is no challenge by a judge or defense attorney applying those pesky rules of evidence. They can use the leverage of a damning indictment to obtain guilty pleas – or to simply dismiss a weak case – several months into litigation after defendants have perhaps lost a job or even been jailed, and victims have been frustrated.

Saying with a straight face that criminals will consider the type of probable cause procedure before acting is not real. Likewise it is shortsighted and unprincipled to support a grand jury procedure shown to be less just and more wasteful than the available alternative.

All involved – prosecutors, judges, defense attorneys, victims and the Journal – agree that preliminary hearings are the fairer, more objective procedures at the probable cause stage. Add to that the benefits of “front loading” the system so that decisions can be intelligently made by all parties, and so that cases are either resolved early or at least placed on the track to trial on appropriate charges, then the choice of procedures is a no-brainer.

Claims that the sky is falling because these proceedings will affect the crime rate ring hollow. Police are needed less, not more, for preliminary hearings, and will not be needed in later proceedings if the case is resolved. Victims want prompt resolution of cases as much as anyone, most criminals don’t act out according to the latest rule of procedure, judges desire efficiency and the accused wants a fair hearing.

Besides, the community certainly seeks justice, not just expediency.

The strength of our system is that we strive for a “more perfect union” – by improving the process – not that we wait for a perfect world before we do the right thing.

Michael L. Stout lives in Las Cruces and is married to a district judge.


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