Justice delayed is justice denied, as the old saying goes. And in America nowadays swift justice is harder and harder to obtain.
There was a time not all that long ago when justice was served in a timely fashion. In 1901, for example, President William McKinley’s assassin, Leon Czolgosz, was brought to trial, convicted, and executed less than two months after the crime. Giuseppe Zangara, who attempted to assassinate President-Elect Franklin Roosevelt in 1933 and killed Chicago mayor Anton Cermak as collateral damage, was tried, convicted, and executed inside of five weeks. Lest you think political assassins are put on the fast track to justice, think again. It took 15 months before John Hinckley went on trial for his assassination attempt on President Ronald Reagan in 1981 and found not guilty by reason of insanity.
For the better part of two centuries all across the land criminal trials involving ordinary citizens, even murder cases, were held within a few weeks or months following the arrest of the accused. Yes, on occasion the alleged rush to judgment led to convictions and even executions of the innocent. But those miscarriages of justice occur even in modern times when long months and even years pass before the case is presented to a jury. In the interim, victims and society are denied due justice.
There’s a pending case in Florida where a retired police captain shot and killed someone who threw a box of popcorn at him during an argument over the victim talking on his cell phone in a movie theater. That was seven years ago, and the case has yet to come to trial. The delays in that case may be exceptional. But murder cases nowadays often take more than a year before they reach the courtroom. Until then trial dates are postponed again and again while blizzards of motions, often of dubious merit, are filed and continuances are routinely granted. It’s not just the defense attorneys who are causing the delays; prosecutors are just as culpable. All but ignored is the Speedy Trial Act of 1974 – yes, there is such a law – that requires prosecutors to present their cases at trial no later than 70 days following an indictment. While the giant wheels of justice grind slowly, witnesses move away, disappear, forget details, and even die.
As frustrating as the pursuit of justice is in the criminal courts, it’s far worse in civil courts where it can take several years before a case is heard. These delays are necessary in personal injury cases where damages often cannot be determined until all or most of the medical bills have been submitted. In most states plaintiffs must file their lawsuits within two or three years of the incident. But in Maine and North Dakota, attorneys for the aggrieved have six years to file for damages.
Once the lawsuit is filed, insurance companies, wealthy corporations, and well-heeled defendants are notorious for keeping their cases out of court for as long as legally possible. When they know they will likely be held liable for damages, they play a waiting game while hoping increasingly desperate and suffering victims will cave in and settle for a fraction of what they asked for or deserve. And if it finally gets to court and the defendants lose, they’re likely to file appeals that will take several more years. Again, justice delayed is justice denied.
The Texas Supreme Court took more than two years before it ruled that defamation lawsuits filed by the relatives of the 26 victims of the Sandy Hook massacre against right-wing radio host Alex Jones and InfoWars, who claimed it was all a hoax and grieving parents were “crisis actors,” could proceed in civil court. More than eight years after the massacre the survivors still have not received the satisfaction of justice in a court of law.
Perhaps most responsible for slowing justice to a crawl are appeals by unhappy litigants whose cases were lost or dismissed at the district court level. The appeals courts and supreme courts at the state and Federal levels took center stage following the 2020 election as Republicans repeatedly appealed dozens of ridiculous and frivolous cases of alleged voter fraud that had been thrown out by the lower courts. In the end all the expedited appeals were denied, even by the U.S. Supreme Court, for lack of evidence. Meanwhile a nervous nation was held hostage to the system, worried about the outcome, for weeks on end.
There is an easy way to put a stop to this madness, whether it’s at the district court level or the Supreme Court. Rule 11 of the Federal Rules of Civil Procedure states that claims in Federal courts must not be “presented for any improper purpose, such as to harass (or) cause unnecessary delay” and that “factual contentions have evidentiary support.” Every state has similar rules on its books. But lawyers are extremely hesitant to sanction one of their own, as if the legal profession’s motto is: “There but for the grace of God go I.”
A higher standard of ethics should be adhered to by judges and states’ attorneys general who are at the top of the system. Yet the attorney general of Texas stepped out of bounds and petitioned the Supreme Court to declare the voting results in Pennsylvania, Wisconsin, Michigan, and Georgia null and void and permit the legislatures of those states to appoint their own slate of electors. Equally disturbing, if not downright shocking, the attorneys general of 17 other states endorsed the petition.
Pennsylvania’s brief opposing the petition could not have been written in stronger terms: “Texas brings to the Court only discredited allegations and conspiracy theories that have no basis in fact … Texas waited until now to seek an injunction to nullify Pennsylvania’s election results because all of the other political and litigation machinations of Petitioner’s preferred presidential candidate have failed. The Trump campaign began with a series of meritless 17 litigations. When that failed, it turned to state legislatures to overturn the clear election results. Upon that failure, Texas now turns to this Court to overturn the election results of more than 10% of the country. Texas literally seeks to decimate the electorate of the United States. Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process and should send a clear and unmistakable signal that such abuse must never be replicated.”
Opined Harvard Law School’s Lawrence Tribe: “It’s time for bar associations to step up to the plate and discipline attorneys who abuse the system by flooding courts with claims lacking any basis in fact or law.” The non-partisan Lawyers Defending American Democracy concurred with Tribe, declaring these lawyers bring “shame on the nation, our profession, and the public officials who participated in this unethical and anti-democratic action.”
An editorial by The Boston Globe urged courts to “formally sanction the attorneys in flooding courts with these baseless claims, and state legal disciplinary boards must hold them accountable for the role they are playing in undermining Americans’ faith in democracy.”
That faith in democracy began to seriously crumble during the Mueller investigation that took two years to complete as Trump administration lawyers repeatedly threw roadblock after roadblock into the process. It’s clear the founding fathers who crafted the Constitution never conceived of someone of Trump’s low character becoming President, and he exploited legal loopholes that exposed its weaknesses while he ran roughshod over it, turned the Department of Justice into a political tool, and engaged in seditious activities by encouraging the Capitol insurrection.
To their credit, President Joseph Biden and the new Congress – at least members on the Democratic side – are already at work creating legislation to close those loopholes by strengthening ethics regulations, protecting independent inspector generals and whistleblowers from retaliation, prohibiting the executive branch from interfering in investigations and decisions by the judicial branch, and making mandatory the release of tax returns by political candidates.
From top to bottom, and U.S. legal system is a mess. While Tribe was specifically commenting on the frivolous lawsuits filed by the Republicans challenging the results of the election, his opinion also reflected all lawsuits and motions without merit that are paralyzing the nation’s courts. Our highly dysfunctional justice system is in dire need of a major overhaul, and the best way to do that is for lawyers to police themselves and put a stop to nonsensical claims and appeals by disciplining their peers who are abusing the system and delaying justice.
