MAHONING COUNTY Judges, others explain delays

The bottom line: The judges control their courts, a municipal judge says.
By BOB JACKSONand PATRICIA MEADE
VINDICATOR STAFF WRITERS
YOUNGSTOWN -- Mahoning County officials say they know full well that there are too many people sitting in the county jail awaiting court action.
They just don't know what to do about it.
In a Vindicator story last weekend, the sheriff's department indicated that roughly 70 percent of inmates are not in jail serving sentences but are being held pending court action. That's well above the state average of 51 percent.
Sheriff Randall A. Wellington and Warden Alki Santamas said they don't control the jail population. How fast inmates move through the criminal justice system is out of their hands.
"Clearly we have an overabundance of criminals in jail, and we're not getting to them timely," said Judge Robert Lisotto of common pleas court. "I don't know if there's a place to point a finger or not."
He said part of the reason is that some defense lawyers deliberately stall going to trial, hoping that witnesses will leave the area or that their memories of the crimes will fade.
Overall picture
"That's part of the overall picture," Judge Lisotto said.
The judge said he's been trying to clamp down on lawyers who seek repeated trial delays.
Judge Lisotto, though, has several cases that have been pending more than two years, while the defendants remain in the county jail, unable to make bond. One is Derek Gibson, who has been in jail since August 2000, charged with three counts of rape.
Gibson, 47, told The Vindicator: "If the trial had been within one year, that would have been acceptable. What if I'm found innocent? They can't compensate me for all this time; that's the tragic part of it."
If convicted, inmates are given credit for time served.
John B. Juhasz, a longtime defense attorney, disputed the notion that defense lawyers deliberately stall cases, though he admitted it's long been a joke around the courthouse.
"But if anyone says it's anything other than a joke, then frankly I'm offended," Juhasz said.
He said there are myriad reasons for having to delay cases, such as problems with scheduling or discovery of evidence.
"And sometimes, during pretrial hearings, the issues of a case become crystallized and you realize that you have to go off in a different direction," he said. "Those things just take time. That's not anybody's fault. It just works out that way."
Municipal Judge Elizabeth A. Kobly, that court's administrative judge, said the strategy of some defense attorneys is to continue cases as long as possible, hoping witnesses don't show up or forget what happened. Prosecutors typically want the case to go forward in a timely manner, knowing witnesses' memories are fresh, she said.
When defendants remain in the county jail for long periods awaiting trial, unable to make bond, cost is a factor, Judge Kobly acknowledged.
"The clientele we deal with don't come to court in the first place, the repeat offenders," Judge Kobly said. "We have to set bond."
Up to judges
Judges, she said, control their courts and her court doesn't grant multiple resets. It's up to judges to dispose of cases in a reasonable time, she said.
Judge Kobly said eight out of 10 defendants waive their right to a speedy trial. Once time is waived, defense attorneys' schedules are accommodated.
If defendants didn't waive their right to a speedy trial, the snowball effect of the current system would stop, she said. Charges are dismissed in situations where cases are not brought to court within the time limit, she said.
"Attorneys have an ethical obligation to zealously represent their client. However, if an attorney is attempting to take advantage of the system, it is ultimately the courts' responsibility to control its docket," said Kathi McNabb Welsh, Mahoning County Bar Association president. "To a certain extent, you're never going to do away with continuances [postponements]. Our courts have a tremendous size docket -- criminal and civil. A continuance is part of the real world."
If the courts feel there is a problem, the courts need to address the problem, Welsh said. Attorneys have to put forth reasons why they need a continuance and the judge needs to rule on whether the reason is legitimate, she said.
Courts have the power to continue a case, she said, even when the right to a speedy trial is not waived.
A case can't go forward if the judge is already presiding over another trial, said Prosecutor Paul Gains.
"They can't try two cases in one courtroom," Gains said.
Boardman attorney J. Gerald Ingram said if common pleas judges expect defense attorneys to follow the rules, judges should, too. The judges, he said, should enforce a local rule that requires attorneys and prosecutors to report to the assignment office after the first pretrial and receive a trial date.
Scheduling problems
Instead, the assignment office sets numerous trials for the same time and date in the same court, Ingram said. The result is massive amounts of conflicting schedules which requires continuances, a waste of everyone's time, he said.
Common pleas records show that for Wednesday, Jan. 8, 2003, Judge Maureen A. Cronin has 25 jury trials scheduled at the same time; Judge Lisotto has 16; Judges James C. Evans and Jack Durkin each have 13; and Judge R. Scott Krichbaum has six.
The assignment office, Ingram said, "ignores the [computer] software capability of avoiding conflicts with attorneys' schedules." The judges, he said, should put pressure on the assignment office to follow the local rule, which provides an effective method of setting criminal cases for trial.
A significant percentage of cases would not be reset if the rule was followed, Ingram said.
Ingram said he and Juhasz have raised the issue several times and can't get a coherent response as to why the process of defense attorneys and prosecutors coordinating their schedules and receiving a realistic trial date is no longer followed. "I b---- about it to everyone," he said.
Ingram said a reasonable amount of time to come to trial is six months to one year. There are exceptions when scientific tests, for example, are required and prosecutors must ask that a case be postponed pending results of the tests.
Judge Cronin, meanwhile, agreed that defense lawyers are often the reason judges have to postpone a trial but said it's not always a deliberate stall tactic.
Many of Mahoning County's defense attorneys also represent defendants in Trumbull and Columbiana counties, and in federal court. If they are already engaged in a trial in one of those other courts when their turn comes up in Mahoning County, the judge has no choice but postponing the trial, Judge Cronin said.
And if a lawyer happens to be locked into a murder trial in another court, he or she probably won't be available for a few weeks, Judge Cronin said.
In some cases, a criminal defendant's mental health is questioned so the court must order a psychiatric evaluation, which usually takes several weeks to complete. Sometimes more than one evaluation is necessary.
"Those are the kinds of things that are very common and that can push a trial further and further back," Judge Cronin said.
Inmates stalling?
Something else Judge Cronin has seen lately is what appears to be a stall tactic by the inmates. As their trial date draws near, the inmate files a grievance against his or her lawyer with the county bar association.
In most cases, that breach of the attorney-client relationship requires appointment of a new defense lawyer, who then must be given time to prepare for trial.
All of those factors combine to make it difficult for judges to keep cases moving, and that keeps people sitting in jail longer and longer, she said.
"When you have as much crime as we do in this area, I just don't see any way around it," she said.
Gains said the problem is simply that there are more cases flowing into the courts than judges are able to keep up with.
About 1,170 criminal cases have been filed this year, which is far more than in the past, Gains said.
The number of civil cases filed this year is already about 500 higher than last year's total.
Those cases are divided among five general division judges.
"And that doesn't include the cases that are pending," Gains said. "The workloads of these courts are tremendous."
Gains said he tries to plea bargain cases whenever possible so they can be disposed of and the inmate is not left sitting in jail. Diversion programs like drug court also help keep the inmate population down.
He favors a study to determine the feasibility of creating a pretrial services division like the one used in the federal court system. Criminal defendants would be screened, and those who don't necessarily need to be jailed would be released and monitored by program staff.
bjackson@vindy.commeade@vindy.com