Logjam: An Unintended Consequence of the Preliminary-Hearing Swindle

One of my new articles, which is currently under submission for publication, is titled The Preliminary-Hearing Swindle: A Crime Against Procedure.  In it, I explain a swindle happening in criminal cases throughout Wisconsin.  The preliminary hearing, or simply the “prelim,” has been replaced with a mere in-court reading of the prosecutor’s unchallenged allegations in the complaint.  In some Wisconsin counties, the prosecutors are a bit more straightforward about what they’re doing.  They don’t carry on with the pretense of calling a “witness” to read the complaint or answer questions about it from the “witness” stand.  Instead, because the magistrate is capable of reading the document for him or herself, and in fact has already read the document, the prosecutors in some counties will simply “move” the complaint into “evidence.”  (There is, quite paradoxically, a certain Machiavellian honesty to this streamlined approach, I have to admit.)

This is a problem, of course, because the prelim was designed to be a check on prosecutorial power.  But now, the judiciary has abandoned this role, despite O’Brien’s commitment to it:

1. “Wisconsin Stat. § 970.038 does not set forth a blanket rule that all hearsay be admitted. Circuit courts remain the evidentiary gatekeepers. They must still consider, on a case-by-case basis, the reliability of the State's hearsay evidence in determining whether it is admissible and assessing whether the State has made a plausible showing of probable cause.”
2. “The degree of probable cause required for a bindover [at a prelim] is greater than that required to support a criminal complaint.”

O’Brien even gives examples of how to assess reliability.  But instead of making any effort to do so, magistrates now dutifully bow down to prosecutorial power, blindly accepting anything and everything written in the complaint no matter how absurd it might be.  Contrary to O’Brien’s second mandate, above, magistrates are no longer distinguishing between a mere complaint (with untested hearsay allegations cut-and-pasted into it by a prosecutor’s paralegal) and the preliminary hearing (which requires witnesses with “personal knowledge” who are then subjected to cross-examination). 

To convey the importance of the prelim, it might be helpful to use and build upon a colorful analogy of the great American author Ambrose Bierce, who defined “litigation” as “a machine which you go into as a pig and come out of as a sausage.”  In felony cases, the prelim is supposed to serve as a brake on the machine.  However, prosecutors and judges have transformed the prelim from a brake to a cruise-control button.  Today’s prelim ensures that the litigation machine runs smoothly and uninterrupted, grinding defendants from pigs into sausages at speeds previously unimaginable.  By way of comparison, some California prelims take hours or even days, and can result in the dismissal of charges or entire cases; in Wisconsin, the entire prelim and even several surrounding activities are often completed in literally five minutes (see, e.g., “Preliminary hearing” entry on 04-10-2023), and the defense has virtually no ability to challenge bind-over.

But such blazing speed early in the assembly line could be creating an unintended consequence: a severe logjam toward the end of the sausage-making process.

While I only briefly mention this logjam problem in my forthcoming article (which instead deals with more significant prelim-related problems), here is my informal, Saturday afternoon hypothesis for purposes of this blog post:

1. Because prosecutors and courts have stripped the prelim of its screening function, every single case, no matter how “hasty, malicious, improvident [or] oppressive” the prosecution thereof might be, gets through to the next stage of the meat-grinder.
2. Because the prelim is now nothing more than a reading of the complaint for probable cause, and because the complaint has already been reviewed for probable cause, bind-over is guaranteed with no prosecutorial effort whatsoever.
3. Because no effort is required to win bind-over at the prelim, the prosecutor doesn’t bother studying the case and making a prelim-waiver offer, i.e., a plea offer to induce the defendant to waive the prelim. 
4. Therefore, without any resolution, most felony cases get set on the trial calendar.  With all of these cases getting set for trial, it will take longer for any given case to actually get to trial due to this insane logjam at the end of the meat-grinding process.

With regard to the last part, no. 4, in my own experience I have been given trial dates as late as nine and ten months after I requested a trial.  And when I get an earlier trial date, there have been numerous other defendants also stacked up for trial on that same date.  And if my hypothesis is correct, this also creates problems for several additional, interested groups: 

1. Prosecutors.  Because prosecutors didn’t have to put on a prelim and therefore didn’t meet any of their complaining witnesses or learn much of anything about their cases, all of their work must come at the back end of assembly-line process.  Prosecutors simply have no idea how credible or serious their witnesses are, for example, until the eleventh hour, if then.  And for the relatively small number of cases that really should be going to trial, prosecutors will have far less time to adequately prepare for them because they are so backlogged with cases—often a double-digit number of cases?—all stacked up for trial on the same day.
2. Witnesses.  Monday morning is like a chaotic cattle call, with prosecutors and defense lawyers wondering which trial will actually “go.”  Meanwhile, witnesses on numerous different cases are wondering who all of these other people are, while having no idea that “their case” is competing with several others for the chance to take a ride on the litigation machine’s conveyor belt.  For law enforcement officers, who prosecutors use as witnesses in virtually every case, it’s different.  They know the game, but it costs a lot of our money and a lot of their time to have them there, waiting, on the chance their case gets selected to actually go to trial. 
3. Defense lawyers.  This inefficient trial-stacking impacts defense lawyers, too.  For example, my trial calendar is filling up fast.  I therefore take far fewer case appointments than I otherwise would, as it takes time to prepare for all of these trials.  I don’t know which of my cases the prosecutors will ultimately dump at the last minute, and which ones they will (sometimes blindly) actually take to trial.  And because I don’t know, I have to be ready for all of my scheduled trials.  It’s highly inefficient, and creates a tremendous amount of wasted effort on my end, to be sure.  (This is why some judges used to try to set plea bargain deadlines, which is certainly understandable but creates its own set of problems, as I wrote about here.) 
4. Defendants.  Of course, defendants are affected too.  All defendants who don’t get to go to trial will remain in custody or, if they have the money to post bail, will be subjected to continued non-monetary bond conditions.  But even defendants who aren’t scheduled for trial that day are impacted.  Because defense lawyers in the private bar can take fewer case appointments, defendants are now sitting longer and longer without an attorney.  I recently saw the list of defendants waiting for appointed counsel, and it’s never been that long before.  Ironically, then, the greater “efficiency” of the preliminary-hearing swindle might ultimately be creating logjams at the beginning of the litigation meat-grinding process in addition to the giant logjam at the end.

If my hypothesis is true, the solution is to restore the prelim so it can once again be used to screen out improvident prosecutions.  I’m baffled why judges don’t do this.  Requiring more work on the front end of the assembly line—work that would be done by court commissioners, not judges—would greatly unclog the judges’ trial calendars on the back end of the meat-grinder.  Color me confused.  (The next best solution, as I explain in the forthcoming article, is to completely eliminate the prelim in form, as it already has been in substance.) 

In any case, enough of these frivolities such as clogged calendars.  Stay tuned to The Dog for updates on my forthcoming article, The Preliminary-Hearing Swindle: A Crime Against Procedure.  In it I address far more serious issues than the criminal courts’ trial-related logjams.  I’ll post the pre-publication draft once I accept an offer of publication, probably some time in February or March.  Also stay tuned for Defense Lawyer Decision-Making and the Preliminary Hearing.  In that article I demonstrate that, particularly in light of the above swindle which is now widespread and engrained in Wisconsin's criminal procedure, the decision to have or waive the prelim should belong to the defense lawyer, not the defendant.