Utah Court Rules – Published for Comment
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Posted: July 14, 2016
Rule 10-1-407 Time to charge. New. Fourth District local rule that governs the time and conditions between arrest and first appearance in all felony and Class A misdemeanor offenses when the defendant is arrested without a warrant and remains in custody.
Seems good to set times for filing, but the entire purpose appears subverted by the subsection (b) carve out. It appears that the intent, at least implied, is to put time constraints on the State so persons in the worst-case scenario (those who cannot financially afford to post bail) don’t languish waiting for charges to be filed. Those people, however, will continue to be punished for their lack of finances because the State is allowed additional time to screen and charge with the presentation of good cause in writing. “Good cause” is an amorphous term that will give remedy to nobody. Furthermore, if “good cause” is found, then the rule only says that the matter shall be continued……continued to when? for how long? And, the arrestee “will continue to be held” with bail. Again, this disproportionately, yet almost exclusively, harms poor people because those who have the means to post bail have probably already done so and this rule is meaningless to them.
It appears more appropriate to set the time of 4 days after the arrest as the limit; if the State does’t file, the person is release, but the matter isn’t necessarily dismissed, just continued if the State requests more time for screening (up to 30 days without an arbitrary finding of good cause). If the State then wants to proceed on the case, file the Information and get your arrest warrant or serve the person by summons. Done.
Otherwise, Mr. Poor waits 4 days in jail on a class A misdemeanor drug charge (first offense), but the State isn’t ready to proceed because the arresting officer is: in training, out of town, in trial or whatever “good cause” may mean and the matter is continued to some date in the future (with no time limit requirement like the 4 days). Meanwhile, Mr. Poor stays in jail to this (un)certain date, at which time he may or may not be charged, then he’s appointed a public defender and then another week or more could go by before he appears before his assigned Judge and meets with his attorney (who has hopefully reviewed discovery, if it has been provided timely).
I am troubled by how long it can take in Fourth District Court for charges to get filed against someone who has been arrested. I’m not a criminal defense attorney but I have an active bar license and have occasionally become aware of situations where prosecutors don’t file charges in what I would consider to be a reasonable period of time. Yet someone is either sitting in jail or forced to post bail even though they have not been charged with anything for days or weeks. It seems to me this happens more frequently and egregiously in Fourth District than in other Utah jurisdictions I am aware of. So anything that would help that process along seems to be a good thing. In my view, judges should already have been requiring prosecutors to act in a more timely fashion.
RE: Rule 10-1-407. If an information has not been filed, there is no case file opened in Coris, and no case number has been assigned. The rule requires a request for additional time to file be made in writing. Since there is no case opened in Coris and e-filing is mandatory, how are the written requests for additional time to be submitted to the Court? They can not be e-filed without a case number. Does this create an exception to the mandatory e-filing rule? After the filing issue is resolved, how will the court clerks maintain a record of these motions after they are filed, and until a case file is opened and a case number is assigned? If they can’t be e-filed, and they have no case number where will they be maintained and how will they later be associated with the case file?
Do we really need local rules? If this proposed rule is necessary, or even a good idea, why wouldn’t it be necessary or a good idea in all Districts? Maybe this new rule should be shelved and submitted for discussion statewide instead? Absent some really compelling reason, Local Rules are a step in the wrong direction. Exceptions can be made for rules that are being implemented in stages, or as a trial to identify unanticipated problems before committing a lot of resources to statewide implementation. But otherwise, how can the resulting lack of uniformity be justified?
Clarifying language should be added to the “Applicability” section that expressly limits the rule to the Fourth District.