I have often thought of the criminal justice system, that hoary mistress to the prison industrial complex, as a meat grinder. It chews people up and spits them out. As a public defender, I regularly act as the guy who tries to extricate them at the last second or the guy who gets them through it with as little suffering as possible. I often fail.
Lawyers such as me, who defend the least among us in this society, understand that you can't find exculpatory evidence hiding under a rock, and you can't pull it out of the ether. However, you can create it.
One place where a lawyer can create exculpatory evidence is the preliminary hearing room. What is a preliminary hearing room? The preliminary hearing room is the courtroom where arrested persons charged with felonies first see a judge and decide whether to demand a hearing. What is a preliminary hearing? A preliminary hearing is an evidentiary hearing where the city judge determines if there is probable cause to have the matter "bound over" to the county system for felony prosecution.Witnesses who testify at preliminary hearings are doing so at a time most contemporaneous with the matter at hand. They do so under oath. Their statements are recorded and may be produced at a subsequent trial.A defense lawyer's goal in a preliminary hearing is not, merely, to win. It is to lock in a version of events, under oath, so that subsequent muddling will be revealed. That revelation of muddling, during trial, is exculpatory. It negates culpability. It is honest to God exculpatory evidence, created in the preliminary hearing room.
Now, it may not feel like that suppressed DNA evidence report, or the secret witness little old lady across the street who saw the whole thing but doesn't want to get involved. But it is an essential tool for trial: prior sworn testimony.
Case in point: a skittish, racially and sexually confused and paranoid individual is arrested at the car lot where mechanics have given him the runaround for days. As police approach and confine him, he bolts for the door and sprains a cop's wrist. He is charged with a felony and a preliminary hearing is had. The cop's prior sworn testimony revealed that no intent to assault occurred, no consciousness of guilt could be found. At trial, months later (me, appointed, after a string of annoyed private lawyers had fled from the case) the prior sworn testimony revealed that subsequent muddling occurred. He was found not guilty.
The preliminary hearing is not merely a tool for crafty lawyering, though. It's a testament to the integrity of the system. It is fair, on a basic level, to expect that witnesses make their claims early in the process and under oath and under cross-examination when events are fresh in their minds. Any principle-minded individual who aims to make the criminal justice system "just" must agree. It don't take a justice major (lit minor) to figure that one out.
The preliminary hearing is an elusive bird. In our jurisdiction they rarely occur. Why? First, there's another way to initiate felony prosecution; that is, through presentment of evidence to the grand jury for indictment. The presentation of evidence to the grand jury is non-adversarial. It is not subject to cross examination, and its proceedings are hush hush. It's the county prosecutor's dog and pony show. No defense lawyers allowed!
The county prosecutor often takes the simplest route to indictment: presentment to the grand jury before a preliminary hearing occurs. This renders a preliminary hearing as moot because an indictment has already been secured through alternative (secret, non-adversarial, not subject to cross-examination) methods. The city case that would have been bound over has been "nolle: indicted."
This is a shame, because an open, adversarial discussion of the nature of the evidence is exchanged for a secret proceeding. That trade-off seems unjust. It deprives society of the right to see and know accusers. It deprives defendants of fresh, eyewitness testimony.And yet, when assigned to the preliminary hearing room in my role as public defender, I frequently advise that defendants waive their preliminary hearing. It has to do with bond and access to counsel and the particular charges and the dreadful conditions of local incarceration. I am not alone in often advising that preliminary hearings be waived.
There is a happy medium somewhere between having a preliminary hearing on every potential felony and never having them at all. It is the obligation of the public defender assigned to the room to find that happy medium for the benefit of individual defendants, as well as, for the benefit of an open society that is unafraid to question, under oath, the official story.
Lawyers such as me know that anything that doesn't jibe with the official story is exculpatory. Each morning in Courtroom 3-D, the exculpatory evidence machine churns on, slower than one might hope, but at least it's working.
