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Integrated Justice: The Burden of Proof

In the first of a three-part series on integrated justice, Government Technology examines why technology has failed to integrate our judicial institutions.

by / November 30, 1998 0
Separate but interdependent. The notion is that our judicial system, based on adversarial participants, can still somehow work together for the common good.

As George Nicholson and Jeffery A. Hogge point out in their essay, "Retooling Criminal Justice," nearly 50 years ago U.S. Supreme Court Justice Robert H. Jackson spoke on the issue: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

More recently, Judge Deanell Reece Tacha of the U.S. Court of Appeals for the 10th Circuit, which spans the Rocky Mountains, expressed the same concept: "Common sense supports the notion that the public good -- and the economy -- would be served by enhanced communications between the branches. ... Separation was not intended to mean alienation or to create antagonistic positions."

Despite this wisdom, our adversarial criminal-justice system is severely restricting the flow of information at a time when interdependence is needed more than ever. While crime is dropping, caseloads are rising, thanks to more aggressive policing throughout the country. Costs are also rising as lawyers file more documents and briefs on behalf of their clients, clerks struggle to process the paperwork and judges spend more time plowing through massive fields of paper documents in an attempt to rule on an ever-increasing number of cases.

The growing problem has set off alarms in the judicial community. Lawyers, judges and judicial experts have expressed concerns that the public is not receiving swift and fair justice because the current system is so bogged down in paperwork. It doesn't have to be this way, of course. Technology exists that can streamline the paper process from the moment of arrest to the jury's verdict. So why isn't technology making things better?

In a series of in-depth articles, Government Technology will examine our justice system and the role of technology. First, we investigate the existing situation. With California as a case study, we look at the burden paper documents have placed on today's judicial system and the barriers that have thwarted the move to integrated justice, including the state's struggles with collaboration, funding, privacy and politics.

Second, we will present the ideal solution. What would a fully integrated justice system look like? To find out, we'll examine some of the efforts already under way at the state and local levels around the country. Experts will also voice their opinions on what kind of integrated justice system we should have. And we'll look at some of the technological components that will make it all happen.

Third, we'll examine what it will take to move from today's paper-choked judicial system to tomorrow's electronic solution. We will look at what the federal government is doing to foster judicial collaboration using technology, how states are breaking down statutory, legal and political barriers to integration, and what technical hurdles must be overcome.

We hope this fresh look at justice and technology will open the door to more meaningful efforts at enhancing and sustaining the judicial system as it was first envisioned by our forefathers.

The Simpson Factor

While many question whether justice prevailed in O.J. Simpson's criminal trial, most would agree that technology did. The trial, which spanned 256 days, 126 witnesses and 1,105 exhibits, was a showcase for modern court technology. Computers allowed lawyers to rapidly search databases of documents, photos and graphics, enlarge and display them on huge projection screens and use light pens to draw on monitor images.

Unfortunately, the technology used at the Simpson trial was hardly typical of today's courtroom. The nearly $100,000 in state-of-the-art hardware and software was donated by publicity-hungry firms. And there were still reams of paper documents generated during the pretrial process. If the Simpson trial had ended in a guilty verdict, the paper trail would have grown considerably with appeals filed, new evidence introduced and pleas made.

The transcript for the Simpson trial covers 45,000 pages. If the ex-football star had been given the death sentence, the pages of documents in his case would have easily tripled before all was said and done. The high-tech courtroom trial would have all been forgotten by the time prosecutors and defense attorneys had churned their way through a process that is still largely paper-driven.

Decades of Distrust

Ever since police departments, law firms and courts began replacing typewriters with computers, various parties have proposed integrating our justice system so that documents, briefs, transcripts, graphics and files could be exchanged and distributed at the push of button. Automation, they argued, could slash the time and labor costs wasted on tasks associated with managing and routing an endless stream of paper documents.

In the early years of such proposals, most institutions rightly balked at the notion of building a single, centralized justice system, the only kind of solution that proprietary technology could offer. Today, advancements in technology and open standards have rendered the centralized approach out of date. Systems can remain independent and yet still share information. The phenomenal Internet is now the model for integrating information between different institutions.

But decades -- centuries -- of distrust, conservatism, independence and adversarial relations have built up, making it extremely difficult for our judicial institutions to collaborate on the technological benefits of integration. For years, lawyers and judges have shared information, by the printed page and face-to-face or voice-to-voice encounters, only as necessary, explained Justice Nicholson and attorney Hogge in their report, "Retooling Criminal Justice: Forging Workable Governance from Dispersed Powers." As the world has pulled into the fast lane of the Information Age, criminal justice has fallen behind dramatically. What was once a workable system is becoming increasingly unworkable as public safety falters, civil rights diminish and public trust in criminal justice wanes.

The lack of cooperation is deep-seated, according to Jeff Gale, chief deputy public defender for California. "Our justice system is an adversarial system," he said. "We are not used to cooperating with each other either horizontally or vertically. There's not a history of cooperation at any level."

Lack of cooperation cuts across every issue that must be overcome if there is to be an integrated justice system. From funding and procurement policies to privacy issues and rules of governance, proponents of integrated justice are faced with repeated questions concerning confidentiality, privacy and protection of turf. And it's not just a matter of police sharing files with the public defender's office. It's also state and local turf issues, especially in highly decentralized states, such as California.

"There's been a long-standing disparity in how local trial courts are funded here," explained Justice Tom Cecil, presiding judge for the Sacramento Trial Court in California. "The result is a hodgepodge of court technology from one end of the state to the other. Throw in county politics and state politics and it makes information technology a futile exercise."

In spite of such problems, efforts are under way to find common ground for using technology as concerns grow about our government's ability to render equal and fair justice. Some of the pressure is internal; rising costs and caseloads strain existing resources within the agencies and institutions that serve the justice system.

Other pressures are external. Government agencies are increasingly sharing information and integrating existing computer systems. Politicians are beginning to wonder aloud what's taking the justice system so long to do the same. Taxpayers are also voicing demands for a justice system that is fair and efficient and not bogged down by paperwork. Sensing that time is running short, judicial experts, from the U.S. attorney general on down, are exerting pressure to change the status quo.

Less Crime, More Work

For the first time in more than 30 years, the nation is experiencing a significant drop in the overall crime rate. The number of murders, robberies and assaults are declining. But when you look at court caseloads, judicial expenditures and inmate populations, the numbers portray a judicial system in trouble. In a hearing on Capitol Hill in June before the House Judiciary Subcommittee, Judge Terrell Hodges, chairman of the Executive Committee of the Judicial Conference of the United States, remarked, "many courts are simply congested with too much work and growing backlogs."

A quick look at the numbers tells why. At the federal level, total filings per judge increased 17 percent from 1993 to 1997, according to Hodges. In state courts, where most cases in the country are tried, the numbers are higher. Between 1984 and 1995, the most recent years for which figures are available, civil caseloads rose 28 percent, criminal caseloads grew by 38 percent, juvenile cases increased 55 percent and domestic-relations caseloads skyrocketed 70 percent, according to the National Center for State Courts. The U.S. population grew only 10 percent during the same period.

Not surprisingly, judicial costs have grown with the caseloads. Between 1982 and 1992, the most recent decade for which figures are available, direct expenditures on the nation's judicial system rose 170 percent, according to the U.S. Bureau of Justice Statistics, while police expenditures rose 117 percent during the same period. In 1982 we spent $7.7 billion on our judicial system. Ten years later, we were spending nearly $21 billion annually. And it appears that, increasingly, states are where our criminal-justice dollars are spent. Between 1982 and 1992, states outpaced all other levels of government in spending on police, courts and corrections .

Contributing to the growth in judicial costs has been the number of prisoners placed on death row. in 1973, 134 inmates faced execution. The number has exploded in recent years, reaching 3,219 in 1996, according to the statistics bureau. While the number of death row inmates is only a small percentage of the total inmate population -- in 1995 more than 5 million men and women were in prison or jail, or on parole or probation -- the judicial costs for death-penalty cases are high. An analysis of caseload costs in the federal judiciary by the former Coopers and Lybrand found that of the thousands of cases tried in federal courts every year, the average cost per case has been elevated by federal death-penalty prosecutions.

Setting aside the debate about the pros and cons of this country's death-penalty appeal process, it's clear that rising costs can be attributed to the paper process used to prosecute and defend these cases. Nowhere is that more apparent than in California, the nation's most populous state, and the one with the heaviest court caseloads.

"I would guess that as much as one-third of our efforts center on converting manual paper processes into technological processes and back," said Gale, whose public defender's office handles the defense for nearly all of the more than 400 men and women on death row in California. It's not unusual for the document page count of a death-penalty case to reach six digits and to fill a conference room waist-high with boxes.

At the opposite end of the legal spectrum on death penalty cases is California's attorney general, who handles all criminal prosecution. Tom Getty, special assistant attorney general, said that capital cases take up a huge amount of time, with numerous court appearances and filings of briefs. He said his staff spends roughly 20 percent or 30 percent of its time on paperwork alone, including cutting and pasting, printing, copying and mailing.

When it comes to shuffling paper, the similarities between the public defender and the attorney general don't surprise Gale. "If you look at the 10 to 12 steps in the lives of these [capital] cases, you'll notice that everybody goes through the same process. I would guess that the one-third of efficiency we are losing [to paperwork] can be applied systemwide, to the police, the courts, the district attorneys, as well as the public defender and attorney general. We could pick up that efficiency if we could go electronic."

Talking Integration

The police, prosecution, defense and courts all exchange information. That automation could make the present system better is obvious. As Nicholson and Hogge so aptly put it, "It doesn't take a brilliant futurist to know criminal justice will eventually be paperless. All documents will be created, filed, stored and retrieved electronically. Exhibits will be imaged ... which can be stored and retrieved electronically. The benefits of this paperless trend are many: dramatically lower costs, time savings, and improvements in storage, retrieval, portability and access, to name a few."

For the past decade, lawyers, judges, and legal experts have been discussing ways to create an integrated justice system driven by technology. But as J. Clark Kelso, professor at the University of the Pacific's McGeorge School of Law in Sacramento, recalled, "back then, we knew we were talking five to 10 years ahead of where the technology was."

Today, the technological landscape has changed dramatically. Gone are the centralized systems based on proprietary technology. In their place are client/server and, more importantly, the Internet. For the first time, nontechnical people -- including police, lawyers and judges -- can see how information can be easily shared between entirely different computing platforms. "The Internet is driving a lot of the developments where we are beginning to see pretty sophisticated data-translation systems," said Kelso. "The middleware is flexible enough so that everybody can agree on at least how you communicate the data, without having to know anything about the computers on either end of the line."

The development of standards that have allowed the Internet to grow comes at a critical point in judicial systems. In California, for instance, courts are under a severe strain due to incompatible technology. "All of California's courts are automated to some degree," wrote State Supreme Court Chief Justice Ronald George in the June-July 1997 issue of Court News, "... but the absence of coordinated systematic development and stable adequate resources has created a riot of incompatible systems. An overview of our court system reveals an electronic Tower of Babel."

He goes on to note, "Courts not only often cannot effectively communicate within their own courthouse or with other courts or the public they serve, they cannot provide complete and up-to-date information about their operations and caseloads to the Judicial Council, the legislature or the executive branch."

Overcoming Limited Vision

To solve the courts' problems in California, George has called for a statewide approach to court automation, including statewide standards and statewide funding. But his vision fails to take into consideration the entire justice enterprise. No mention is made of linking the police, prosecution, the defense or corrections to the courts of tomorrow.

To many, this example of limited vision will be the biggest hurdle to overcome on the road to integrated justice. "We just don't have any experience working together," Gale explained. "The courts view themselves above the fray and traditionally have judged cases and tried to remain impartial and above it all. They don't really cooperate with anyone for the most part."

Getty agreed. The issue of appearing fair and impartial is important, and courts try hard to avoid being or appearing biased. "But at the same time," he continued, "it makes no sense to argue that the independence of the courts is dependent on having no ties, including information technology ties, with the other branches of government. We need to think of ways to have the court get access to the kind of information that courts need without breaching security, without compromising confidentialities, but at the same time, having access where it's useful and necessary."

To others, the issue is not so much a lack of collaboration, but a genuine concern about privacy and confidentiality. What the police consider confidential may not be so to a defense attorney. Even the courts, where technically everything is open and a public record unless specifically sealed by a judge, have concerns about open access. Especially when the access is electronic.

"As soon as you put a public record on a database that would be searchable by members of the public, you have really changed the level of access," McGeorge's Kelso pointed out. "You would be permitting people to run searches through an entire court database, perhaps looking for somebody's name to collect all sorts of information about them."

A lot of what ends up in the official court record is garbage, according to Kelso. Some people just exaggerate while others outright lie. The purpose of the trial is to find out what's true and what isn't. But the court record contains it all. A jury may decide that some testimony wasn't believable, but it remains in the record.

Right now, the existing paper system acts as a barrier to unwanted and irresponsible searches for misleading information that could be misused. But a
computerized, searchable database would allow anyone to pull up embarrassing testimony, a person's financial record or unsubstantiated allegations of child abuse in a divorce case.

"There has to be some serious thought given to how we're going to allow public access to this type of information and what sorts of warnings we're going to give people who have access so they can properly interpret what they are seeing," Kelso warned.

Serious debate on this issue has taken place in California. Two years ago, the state's Court Technology Advisory Committee, under the direction of Justice Cecil, drafted a privacy-and-access rule for electronic searches of court records. The committee, which took the minority position not favored by Cecil, said that all records -- whether on paper or in electronic format -- are essentially open to the public.

The committee's recommendation was heavily criticized by nearly everyone except the media, which liked the idea of fast and unfettered access to court records. After the strong rebuff, Cecil cautioned that there really needs to be a comprehensive evaluation of the privacy aspects of a public document that can be made instantaneously available with technology. "I don't think it's as simple as saying the Legislature decided this is a public document," he said. "You have to remember that this technology wasn't available when the Legislature made that decision. Do people want their divorce files available to 400 million people on the Internet? I don't think so." According to Kelso, the advisory committee has changed its proposed rule, dropping out any public access to records pertaining to criminal, family or juvenile records.

A Costly Anachronism

When the Oklahoma City bombing trial of Timothy McVeigh began in 1996, the judge banned the kind of live TV coverage that took place during O.J. Simpson's case. The judge went further, agreeing with McVeigh's lawyers not to release to the public and media the tapes of the daily testimony. That left the transcripts prepared by the court reporter as the only source of verbatim testimony.

While the transcripts are the property of the court as the official record, the court reporter has the right to market the transcripts to whoever wants a copy. Given the huge demand from the media for daily transcripts during the trial and the fact that 300-400 pages of transcripts were produced each day, the court reporter, who was allowed to charge $1 per page, was in a position "to make a killing," as one journalist put it.

Few people realize that court reporters, paid by the courts to attend trials and prepare transcripts of the oral testimony, control the intellectual rights to the transcripts as well. What may have been seen as a modest source of additional income for the court reporters, who are really free-lancers, has turned into a
serious roadblock to justice integration.

Whenever a case goes to appeal, the prosecution and defense must use the court transcript to prepare their summary pleadings, motions and writs. They also have to share the transcripts with the numerous experts they enlist to assist in their case. In an electronic environment, the court transcript could be easily shared by the many who need to see it and edit portions of it into their briefs.

But with the court reporter controlling the master copy of every court transcript and charging for additional copies, they have created a major impediment to moving the justice system into the Information Age, according to a number of judicial experts. It gets worse when the case involves a capital crime, where testimony can run as long as 40,000 pages. According to Gale, the public defender, his office will pay $5,000 or more for a single copy of a transcript. "It seems a little odd to me that we pay court reporters to make the transcript and then we pay them again to produce what we paid them to do," said an exasperated Gale.

The anachronistic practice is counterproductive to technology, according to Getty. "It becomes a tremendous burden to draft a state brief without the benefit of having the transcript online."

Getty pointed out that both the attorney general and the public defender are allowed to purchase the transcript on disk for internal use, but that additional copies must be purchased if the transcript is to be shared with other parties, nullifying a principal advantage of having the transcript in electronic form.

"The transcript should be part of the public process," Getty said. "For one party to hold up our ability to be efficient and save time for the sake of their intellectual-property interest works against any improvement in the justice system, which we all want."

Costly Transformation

While it remains unclear how the various judicial institutions plan to clear this particular logjam in the integration process, there's more certainty about overcoming the ever-present funding hurdle. The problem is that it just hasn't happened yet. A major reason for the delay is that funding is inextricably linked to issues of governance and collaboration.

Different agencies receive funding from different sources for different programs. The local trial court may receive a grant for a computer system, while the state appellate court receives funding from a different source and opts for an entirely different system. What happens, Kelso wondered, if one agency tries to convince another agency to purchase a similar system, which happens to cost more?

"Do the agencies somehow split the difference?" he asked. "What if it's law enforcement? They may not see the justification for going entirely paperless and the cost that goes with that transformation."

Kelso pointed out that having a paperless justice system may be good for government, but the reality is that different justice agencies have different funding sources and are subject to internal agency conflicts on ways to spend scarce taxpayer dollars.

According to Gale, the problem will persist as long as law enforcement and prosecution agencies continue to receive the lion's share of tax dollars to pursue criminals. With their steady and robust funding sources, finding money for technology is not a problem. Meanwhile, the courts have received funding for automation in a piecemeal fashion, and it shows. One county courthouse in California has six incompatible case management systems, thanks to funding that trickled in over time from different grants. Gale said the state's Public Defender's Office is technologically current, but at local public defender's offices throughout the state, attorneys often have to purchase their own computers, and local area networks are still a thing of the future.

Decentralized states such as California, where county government is powerful, face another hurdle: creating a strategic approach to funding. With 58 counties and 144 individual court systems, nobody had a clue what the courts used in the way of technology when the chief justice asked.

Nobody knew anything, according to Cecil, because technology wasn't purchased with state funds. Instead, the counties relied on a variety of private sources, grants and federal money. Partly as a result of that finding, the state integrated its trial courts this year and placed funding in the hands of the state.

Through Cecil's Court Technology Committee, the state has been persuading the trial courts to begin thinking of themselves as part of a team that involves the local bar, the public defender, the district attorney, the police and sheriff, probation department and state agencies.

"We're trying to gently explain that it's foolish, not cost-effective and not productive to be building completely independent and isolated systems," said
Cecil. To take the sting out of losing some of their independence, the state delivered to the courts a $50 million modernization package, with 40 percent earmarked for technology. When asked to submit funding plans to the state for the year 2000, more than 40 percent of the requests from trial courts were for technology.

Signs of Change

Given all the problems related to integrating our justice system, it's hard to believe that progress can be made, but optimism abounds in the judicial community. For some it's happening too slowly. But for others, merely the image of law enforcement officials sitting down with prosecutors, defense attorneys, judges and directors of correctional institutions is a sign of a new era.

At the federal level, Attorney General Janet Reno has made integrated justice a top priority and her staff began a series of regional meetings around the country to discuss the issues and to highlight working models. Numerous counties around the country have begun implementing integrated justice systems. Colorado launched one of the most ambitious integrated justice projects in the nation.

Kelso, who has been working on the issue as long as anybody, said he's very optimistic about the future, despite the still formidable hurdles. "I'm optimistic largely because this is the way I see society going," he explained. "It's not just the justice system, but this is the way all government agencies are going." Kelso referred to the rapid and creative use of the Internet by many government agencies as an example of how fast things can change.


"I also think the public simply will demand that the technological capacity that now exists be used by our justice system in a collaborative effort," Kelso observed. "What's tough to judge is the time frame. These kinds of changes to the justice system are big and take awhile to accomplish."

Next: Tomorrow's integrated justice system -- what will it look like? An examination of the ideal paperless system and what some jurisdictions are already doing.

Resources:

Office of California
State Public Defender

National Center
for State Courts

Bureau of
Justice Statistics

Judicial Council
of California

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