First Class Justice vs. “the Cattle Call”

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By a Courtwatcher

Courtwatch is a group of citizens who volunteer to attend criminal proceedings by request of the defendant or a family member of a jailed defendant. We are there as witnesses to criminal justice in Champaign County, to figure out how it actually works, and we are learning more about our local system all the time.

Recently, Courtwatch discovered that there are two separate courtroom procedures in Champaign County. One is for those who can scrape together the money for a private attorney and the other is for those who cannot. This takes place in the stage known as “pre-trial hearings.”

We thought we knew all about them. They are known among lawyers as “the cattle call.” It is occasionally hard to get in the courtroom because it is so full of people with cases, mostly people of color (maybe two thirds). While awaiting the judge, who is generally ten minutes late, we all are free to talk to each other or watch the lawyers across the Bar that separates us, talking to one another, a mix of business and social chat:

“Did you get the psychiatric evaluation back yet on our guy?

“Not yet. Heard you were in Florida. Did you enjoy yourself?”

The judge enters and we are all asked to rise and be silent. The business at hand is the roster of 30 to 50 people who have to have new dates for next month’s pre-trial hearings; a few of that number, two to five, will be declared “ready for trial,” and a more meaningful date set. Each time a new case file and name is declared from the Bench, that individual must stand up in the courtroom, unless s/he is in the jail, in which case the lawyer for the Defense says, “In custody, Your Honor.” When the judge sees no one stand up and hears no one say, “In custody,” the gavel comes down and the word from the judge is this:

“Warrant for the arrest of so-and-so. Bond forfeiture hearing will be (a date in the near future).” This means that whenever this person is served with the warrant, he goes directly to jail with an additional charge, “violation of bond.” This means also that whoever supplied the money to bail our guy out of jail in the first instance has lost all that money permanently (anywhere from $200 to upwards of $25,000, as ten percent of whatever bond amount was determined in arraignment court). The latest cattle call we attended there were six of these warrants issued.

This was what we thought we knew about the way it worked. Then came a day this Spring when three of us were seated on the front row of one of these pre-trial sessions and we heard this:

“Your Honor, my client was just released last night from the Residential Treatment Center and left for Chicago.”

Judge: “Well, why didn’t he come back from Chicago?”

Lawyer: “He didn’t have the money.”

Judge: “Okay. Well, how about May 13 then?”

Two cases later, the Prosecuting Attorney announced, “Your Honor, that person is out of the country at the present time.”

Judge: “Okay, how about May 13 for her?”

One courtwatcher turned to another and whispered, “Must be white people.” At that moment, one of them turned to look over his shoulder and whispered, “This whole courtroom is full of white people!” (This was a slight exaggeration because there was one pair of Black men, a lawyer and his client).

“How could that possibly be?” whispered the other one. They had been to countless pre-trials and the courtrooms seemed to be two-thirds to three quarters people of color. This was beyond random, and yet how could it be purposely designed?

As the court emptied out, including the judge, and one of the cases in custody, for whom we were watching, had not been called, a courtwatcher went up to the bailiff, to enquire about the missing case. The bailiff replied, “Well, does he have a private lawyer or a public defender? because this last session was all private lawyers.”

“And if he had a public defender?”

“Oh, the cattle call was at 9:00. You missed it.”

What a relief for us. We were not crazy after all.

So this whiteness was simply a side effect: Private lawyers cost money. Public defenders are free for the defendant.

Yet the solution to this puzzle, brought up other questions. Why had we courtwatchers never noticed this fact of court process – one pre-trial session for cases with public defenders and another for cases with private defense lawyers? Surely, it must be an innovation, so we began inquiries of a few attorneys.

The conversations went something like this – “is this a new separation into two types of pre-trials – private and public?”

Attorney: “Why No, it has been done that way since anyone can recall.”

Courtwatcher: “But why?”

“Well, it is merely for the convenience of the private lawyers so they don’t have to hang around in court for so long. Their time is valuable. The rosters are much shorter than they are in the public defenders pre-trials. That’s all.”

“But there is a difference in what the judges do in these two kinds of pre-trial sessions!”

“Really? Like what?”

“Like issuing warrants in the cattle calls and not at all in the private sessions. The lawyer can come up with the lamest excuse and it works.”

Attorney: “Oh, I did not know that.”

“So why would the judges do that?”

“I suppose it goes back to the judges and the lawyers wanting to encourage everyone to get paid lawyers. If the free legal help was as good as the paid legal help, there would be no incentive.”

“How deep does this preferential treatment go? Does it go to the plea deal offer where the State’s Attorney’s office would make better offers to private attorneys than to public defenders?”

“Some do and some don’t. Impossible to determine really.”

“So how come we never noticed a session that was all public defenders?”

“Because there are always a couple, to four or five private lawyers present because they are taking over cases from the public defenders. Some people have the public defender for months till they can get the money together from various sources to pay for a private attorney just in time for trial or plea, and often these defendants would be African-Americans.”

Thus, the puzzle of own perceptual blindness was somewhat explained, but what about the attorneys’ perception that this division is simply a matter of convenience for them, that their time is literally more valuable than the public defenders’ time since the latter are on salary. The judges are a puzzle too. Do their daily workaday habits obscure the pattern: their structured preference for/deference to the Green (paid lawyers) turns into a benefit for the White (clients)?

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