Friday, July 27, 2007


The news was full of the arraignment of Michael Vick. Celebrity show time, similar to the parade of beautiful people on the red carpet at the Oscars. No substance, however. The federal Court put itself and its personnel through a useless procedure. Lawyers for the government and the accused could have handled the matter by email to the clerk of the Court. They could have told the Court, “Here is a grand jury indictment; a copy has been received and read by the accused; this defense counsel represents the accused; this counsel is satisfied that the accused understands all of his rights; and this accused, for now at least, chooses to put the government to the proof; so we enter a plea of not guilty. As to bail, all of the parties are satisfied with the present conditions of release, a copy of which is in the Court file. Motions may come later, in accordance with the Court’s instructions, rules and schedule.”

At the time of the arrest, the accused is taken to a Magistrate for an initial appearance, advised of his rights, given an opportunity to ask for conditions of release (including bail and ankle bracelet, if any), and the case is dismissed (no probable cause) or held over for action of the grand jury (the grand inquest), for no one may be prosecuted for felony unless on indictment (or in some state Courts, on information, a charging paper signed and filed by the District Attorney). The accused can ask to be allowed to talk to the grand jury, subject to cross examination by the prosecutor, but may choose to “lawyer up,” as Sipowitz and others on NYPD say. No inference is supposed to be drawn from an accused remaining silent.

Money (salaries and fees) could have been saved, to be applied to the criminal justice system in more worthwhile ways. Incidentally, there is no legal difference between the wording of the plea made by O. J. Simpson, and that made by Vick. O. J.’s plea of “absolutely, 100% not guilty.” or words to that effect, should have brought more heat on him and his lawyers than Judge Ito meted out.

It may be said that this post is much ado about little. Actually, it is a lead-in to general, overall discussion of reform of the procedure that we use in the criminal justice system, State and federal. Most cases end in plea agreements. Why waste Court (judges, lawyers, bailiffs, security people) time on this procedure? In New Mexico we have brought prisoners down from Santa Fe (in cases in which they were accused in Albuquerque but held for safekeeping, as very dangerous, in the penitentiary in Santa Fe), for arraignment in Albuquerque. That is a waste.

There is one reason that I can put forth for the ritual of arraignment. It is a show for the public and as such perhaps increases the deterrent effect of the criminal law. You may say that the accused may waive arraignment, but only with consent of the Judge and prosecutor. I propose the email arraignment, and let all public records be on line.

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