During a break in hearings at the Davis County Justice Court one morning in March, a crowd watches as Judge Jerald Jensen calls the county prosecutor up to the bench. The judge cracks a boyish grin and jokes with the prosecutor. Though it’s difficult to hear the joke, the crowd can see the judge hold one arm to his waist and then hold the other in the air—almost like he’s doing an impersonation of Lady Justice holding the scales—before placing his thumb to the point of his nose and wagging his fingers. The men give a laugh and the hearings resume. Jensen isn’t smiling anymore.
A woman in her 50s, charged with driving on a suspended license, worries about making $30 minimum payments and asks if she can do community service:
“That’s not what the judgment is,” Jensen says. “Aren’t you disabled? Can you work?”
Another woman, Julie Taylor, is sentenced after eight years for having flicked a cigarette out her car window in 2002. Two weeks before trial, she discovered there was a warrant out for her arrest.
“I paid $220 for one cigarette,” Taylor says. “That’s why you don’t smoke.”
Jensen also hears the case of Nick Lopez, who drives a fire engine for the Salt Lake City Fire Department. Lopez who hasn't had a ticket in 16 years, was cited for speeding. Lopez tells Jensen the vehicles in the lane in front of him came to a stop as a car raced up behind him at an unsafe speed, forcing him to swiftly change lanes.
“I don’t think this satisfies the need for increased speed,” Jensen says. He gives the fireman a plea in abeyance costing him a court fee of more than $100.
“The judge wasn’t there [when it happened],” Lopez says with a shake of his head as he walks out the court.
These nickel-and-dime stories aren’t isolated to Davis County. Throughout Utah, misdemeanor courts process defendants in an assembly-line fashion that many advocates say not only is unfair, but oftentimes cuts corners with defendants’ constitutional rights. Despite the number of judicial reforms that have gone into effect, some say the best way to balance the scales for those getting ground-up in justice courts would be a more robust system of statewide public defense.
“When you have people on the margins, my advice is to err on the side of appointing counsel, because of the serious collateral consequences of pushing people on the margins too far.”
“A healthy, vibrant, public-defender system can help make sure that people who qualify are getting [court-appointed counsel],” says Emily Chiang, director of the University of Utah’s Civil Rights Clinic, which has been studying indigent defense in the state.
She thinks more public defenders can be a check against sloppy adjudicating, especially when judges implicitly discourage defendants from even applying for public defense. Judge Kevin Christensen of the Box Elder County Justice Court, for example, has been criticized multiple times by the American Civil Liberties Union of Utah for bullying indigent defendants. Another judge, Salt Lake City Justice Court Judge Sydney Magid, denied an indigent defendant a public defender because he wasn’t in jeopardy of serving jail time only minutes after telling him that he could be jailed for not complying with court-mandated treatment. Judges like Jerald Jensen in Davis County, who runs one of the busiest courts in the state, believe the key reform to holding court participants accountable for their conduct—from defendants to judges and prosecutors—is creating audio recordings of justice-court proceedings, which unlike district courts, currently have no transcribed records.
Attorney Mike Martinez, who challenged the constitutionality of justice courts in 2007, worries no reform will be meaningful unless municipal revenue needs are uncoupled from justice courts. He says that Utah’s justice courts and their mass-processed verdicts stack the deck too much against defendants.
How stacked? Records obtained through the Utah Administrative Office of the Courts indicate that in city justice courts and county courts in 20 of Utah’s counties (with the exception of the Salt Lake City Justice Court), 73 percent of all traffic charges—from speeding to DUIs—were guilty charges. But that includes all the charges to which defendants simply pleaded “guilty” or even “no contest.” For all the charges in 2009 that defendants fought all the way to a bench trial, only 154 out of 2,411 were found not guilty—a nearly 95 percent conviction rate.
Since these guilty verdicts were misdemeanors and traffic infractions, officials with the Utah courts say such a high number is not unusual, but for critics like Martinez, it’s further evidence of a court system that just grinds up defendants.
“It’s just a mill. It’s almost mass chaos,” Martinez says. “There’s no justice in it.”
In the Davis County Justice Court, just as any justice court, Jensen’s court is filled with people who screwed up, most of them not denying it. One unique rule Davis County applies, however, is that when defendants are required to pay fines in installments, they’re required to pay by a set schedule each month and come into court if there are any problems.
With Jensen’s court docket often filled, Jensen is unsympathetic with those who waste his time. Robin Walker, however, didn’t think she’d be wasting his time when she went to court on March 13 to give the court advance notice of her inability to pay her next week’s $200 payment toward a $1,600 fine she received for falling asleep at the wheel of her car.
Out of work, facing eviction that weekend, and with a coming week full of court-ordered treatment, Walker wanted to request an extension. Jensen excoriated her for not following the order.
“I’m sorry I came in a week early,” Walker says.
“Can you just listen?” Jensen barked. “I didn’t ask for a response. Obviously we’ve been over that three times.” A pause hangs over the courtroom before Jensen asks: “Correct?”
“You are correct. I am wrong,” Walker says, her voice trembling.
“You certainly are,” Jensen shoots back. “Even after you were given a written order and a verbal order, of course, you’re not concerned about the 50 people here.”
At this point, Walker, with tears on her face, turns to the court to apologize before being cut off by Jensen.
“You interrupt me one more time and you are going to jail today!” he bellows. During the rest of the proceeding, Walker’s voice is barely a whisper as Jensen chastises her for not trying to take the week to find a job.
In a follow-up interview, Jensen doesn’t recall the specific case, though he doesn’t object to the way his orders are scheduled and cites the specific requests of the order as being generous to the defendants, who get the opportunity to explain failure to make a payment—if they come in when they’re supposed to.
“I expect someone to comply,” Jensen says. “If someone comes in ahead of schedule, there’s no doubt in my mind that I may have taken exception to that.”
Outside the court, Walker, in tears, wonders why the judge couldn’t have just told her to come in next week. “I came in to do the right thing, and he made a mockery of me.”
Martinez says these kinds of decisions and judicial conduct are inevitable as long as justice courts are tied directly to the revenue of cities and counties that force them to just churn through defendants.
By the Numbers
Attorney Martinez’s major fight against the justice-court system was a case from 2007, Goodman v. West Jordan, where his client was written up for not having auto insurance while he was inside a Walmart in West Jordan. Martinez believes the cop was just trolling the parking lot for revenue when he checked his client’s plates.
Martinez used the case to challenge the constitutionality of justice courts, arguing that since justice courts are an extension of city mayors’ offices, they lack judicial independence. He’s critical of courts for only requiring a high school diploma of their judges. His case, which he ultimately lost, helped launch a review of the justice-court system that led to a number of reforms. Still, Martinez is not satisfied.
“You’ve got a system out there that’s grown [too] humongous,” Martinez says. “Five-hundred thousand traffic tickets in 2009 brings in a ton of revenue, in courts run by people who are high school grads and make $100,000 a year to convict nearly everyone that gets a ticket.”
“It’s certainly easy to make fun of justice courts,” says Richard Schwermer, the administrator over justice courts for the Utah Administrative Office of the Courts. “But most perceptions are outdated.”
Schwermer says since the Nehring Commission—the commission charged with reviewing the constitutionality of justice courts in 2008—reforms have been made, such as judges now being appointed by election committees instead of by mayors. While only county justice judges have historically been subject to retention votes to stay in office, by 2012, Schwermer says the same standards will apply to all justice court judges. They will also be subject to the same kind of review as state court judges, which include lawyer surveys and unannounced courtroom observations.
As for training, Schwermer doesn’t think it’s an issue because judges receive twice the annual vocational training as lawyers. “I’ve been doing this for 20 years,” he says. “Some of our very best justice-court judges are not lawyer judges.”
Schwermer also says other improvements are still under close examination, like updating justice courts with audio equipment to record proceedings. In the Utah Constitution, justice courts were deigned not to be courts “of record” because defendants can appeal justice-court rulings de novo—with a completely new trial—in district court. Still, some want justice courts to have audio records for the purposes of note-keeping and to hold judges accountable for their conduct.
One court, in particular, has already applied for a grant to install digital recording technology for just such a purpose—Jensen’s Davis County Justice Court.
“So oftentimes with complaints about justice courts, it ends up being ‘he said, she said,’ ” Jensen says. “[Audio records] protect courts and those who participate and operate in the courts.”
Jensen, who admits to being brusque with defendants who slow down the flow of his busy courtroom, is confident digital records of justice courts would help all judges be on their best behavior.
“I’ll be very candid: If everything was being recorded there where you work, wouldn’t that encourage you to be better behaved?” Jensen asks.
While some reforms have taken effect since 2008, according to Utah State Courts records, it still seems like defendants who fight the law don’t have much of a chance. For Martinez, this goes to the heart of the constitutionality of the courts. Quoting Utah Supreme Court Chief Justice Christine Durham’s pronouncement in the Nehring Commission report, he says, that “any real separation of power is illusory” when it comes to justice courts.
He worries the problem is only made worse by the nature of the charges, since many justice-court defendants are vulnerable in a situation where getting legal representation would cost more than the cost of a fine in justice court.
“When you’re fighting a $90, $180 or even a $500 ticket, are you going to hire an attorney for $1,000 dollars?” Martinez asks.
On April 29, a woman in her 60s stood before Box Elder County Judge Christensen on a charge of retail theft, a class B misdemeanor with a fine of up to $1,850 and up to six months in jail. Christensen told the woman she had the right to an attorney and could apply for a public defender, although he had his doubts about the woman’s affidavit of financial standing.
“Everybody has to have some source of income, some way to eat—how do you get food on the table? What is your income?” he asked. The woman admitted sheepishly that she was on food stamps. Christensen pressed further, asking how long it had been since she had a job, and after she told Christensen it was 2004, he asked: “How is it that you pay rent, ever?”
The woman told Christensen in open court that her husband paid rent, but since he died, she was getting help from her local church and that she was in the process of selling her belongings to make ends meet. Christensen eventually agreed to appoint an attorney, but even after agreeing, he asked how she got bailed out of jail and the woman admitted her daughter had bailed her out.
“Can your daughter pay for an attorney?” Christensen asked, before allowing the woman to leave.
While interrogating a widow on food stamps could be considered an isolated incident, it’s troubling for a judge who, in the past three months, has been publicly chastised twice for such unprofessional conduct. In February, observers from the University of Utah law clinic on three separate instances observed Christensen criticizing people seeking a public defender. In March, ACLU of Utah Legal Director Darcy Goddard witnessed Christensen ask an indigent woman why she hadn’t tried applying at the Subway down the street.
“The judge can always inquire about the information set forth in the affidavit of indigence,” Goddard explains via e-mail. “But in every other court I’ve visited so far in Utah, the inquiry is generally limited to ‘do you swear that the information set forth in your affidavit is correct?’ ” While Goddard didn’t witness the encounter Christensen had with the widow, she says it sounds typical of his behavior. “[It] sounds exactly like what I’ve seen him do, and what he has denied in writing that he ever does.” Christensen declined to comment for this story.
Lack of funding for poor defendants on the poverty line has become a concern for attorneys with the ACLU of Utah and the University of Utah’s Civil Rights Clinic, which has been visiting and studying courtrooms since 2009. The project stems from the concern that Utah is regularly ranked at the bottom in the nation for state support of indigent public defense—48th in 2009—which Chiang sees as a “penny-wise and pound-foolish” approach to justice.
“The danger that comes when you screen [applicants for public defense] too strictly is that you have people losing their homes or selling their cars, and then they can’t get to work. Or they end up not being able to afford child care,” Chiang says. “When you have people on the margins, my advice is to err on the side of appointing counsel, because of the serious collateral consequences of pushing people on the margins too far.”
Only people who face the threat of jail time can qualify for a public defender. Often, justice-court charges are infractions that might not carry a jail sentence, or lesser misdemeanors that likely will have jail time suspended in lieu of completing probation or paying fines.
“Look up extortion in your Black’s Law Dictionary and you’ll see justice courts,” he says. “Because that’s exactly what they do.”
But it was on this type of situation that caused Michael Whiteman to challenge a justice court, arguing that a judge refused to grant him public defense, even after she threatened to throw him in jail if he couldn’t afford weekly anger-management classes.
In December 2009, Whiteman broke up with his then-girlfriend, after a fight in which he says she jumped on his chest and attacked him while he was taking a nap. Whiteman doesn’t deny pushing her to the ground and holding her down until she calmed down, but he didn’t realize that the whole incident would result in him facing domestic-violence charges in the Salt Lake City Justice Court of Judge Magid.
Whiteman still remains friends with his ex but says the hard feelings at the time resulted in her calling the cops on him. By the time his proceedings were in full swing in the summer of 2009, his ex was no longer pursuing the charges herself. Not only that, but he was even the first person she turned to for help when she was physically threatened by a tenant with mental-health issues at the low-income housing facility Palmer Court where they both lived at the time [“Mad House,” Nov. 11, 2009, City Weekly].
During the initial proceedings, Whiteman was assigned a public defender from Salt Lake County’s Legal Defender’s Association. Things were looking good, initially, when the LDA informed the prosecutor that the mother of Whiteman’s ex was willing to speak to the court regarding her daughter’s mental-health history and sometime manipulative behavior. There was even some discussion that the case might be dismissed.
Instead, the court knocked the charges down to infractions and revoked Whiteman’s public defender, since Whiteman technically no longer faced jail time.
Forced to represent himself, Whiteman fought the charges. In a July 15, 2009, hearing, Whiteman asked Magid how he could successfully appeal any justice court decision in district court without a record of the proceedings. In response to the lack of audio records in justice courts, Magid told Whiteman: “That’s just something you will have to talk to your legislator about.” Whiteman knows because he was making his own audio recording of the hearing.
While Magid agreed in court that Whiteman was indigent, she denied him a public defender, arguing that his “underlying liberties” were not in danger because the domestic-violence charge had been amended to an infraction and, therefore, carried no jail time. However, if Whiteman was noncompliant with the order, for example, by not doing treatment because of the costs involved, Whiteman could be thrown in jail for contempt of court.
Whiteman was also denied the opportunity for public defense despite his mental-health issues, citing a diagnosis of schizoprhenia from the Utah State Office of Rehabilitation, which Magid refused to accept. Magid denied his request based on her own assessment of Whiteman’s competency in filing his own legal motions after he had lost his counsel. Ultimately, Whiteman filed a formal motion to request public defense in which he successfully argued that a person living at the poverty line does have his underlying liberties threatened if a court orders him to take part in court-ordered therapy that he can’t afford.
In the recording of his July 15 pre-trial conference, Magid tells Whiteman that if he were found guilty, he would likely be compelled to take a “very expensive” 16-week domestic-violence course that could cost him between $80 and $100 for each weekly visit. Other court documents indicate Whiteman could be liable for $1,174 in court costs and fees.
In his written motion, Whiteman succinctly jabs the decision: “Though the Court has demonstrated an unwillingness to inconvenience its omnipotent insights to contrary evidence (for example, the Court’s refusal to receive evidence of Defendant’s mental deficiencies before declaring he has none), Defendant nonetheless hereby declares his monthly income and expenses,” detailing his Social Security disability payment income stacked up against expenses like rent, vehicle insurance, laundry and food for himself and his companion animal, a kitten named Pepe LaPew.
Whiteman ultimately had Magid removed from the case for denying him a public defender (Magid, who declined to comment for this story, was replaced by Judge L.G. Cutler). The case has been amended to criminal mischief and Judge Cutler has assigned only community service. The court is still looking for a single anger-management class that Whiteman could afford.
“For them to have the audacity to [threaten] to hold me in contempt and throw me in jail—it’s ludicrous,” Whiteman says. “That’s a crooked-ass, fucking thing there.”
Justice courts are a peculiar institution in Utah. They are potentially unconstitutional because cities and counties don’t maintain the courts as independent third branches. Yet, they remain necessary for many cities, if for no other reason than the sheer volume of city and county revenue they provide—$48.7 million in 2009 alone, according to revenue reports provided by the Utah Administrative Office of the Courts. Reformers like Chiang argue more public defenders can better protect the rights of indigent defendants and provide a check against reckless judges.
“It’s just a mill. It’s almost mass chaos,” Martinez says. “There’s no justice in it.”
Martinez worries that bringingmore public defenders into the mix would just legitimize a corrupt system. He says consolidating justice courts across more than one city or region would lessen the conflict between generating revenue and delivering justice.
Still others, like Schwermer, believe when all reforms take effect justice court critics will have to stop complaining about the appearance of impropriety.
For one who had fought within the system and skirted having to come up with potentially thousands of dollars for treatment classes or face jail time, Whiteman advises others not to be intimidated by the legal process. Fighting isn’t easy, especially in his case. A lack of money could have forced him to be in contempt of court and end up behind bars.
Even with the compromise, Whiteman doesn’t hold the justice court in high regard.
“Look up extortion in your Black’s Law Dictionary, and you’ll see justice courts,” he says. “Because that’s exactly what they do.”