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Saturday, April 04, 2009

Courts - More on: Maryland Public Defender Calls Drug Courts Unconstitutional

Here are some quotes again from Friday's Washington Post story:

The state's public defender says Maryland's drug courts give judges too much power and defendants too little protection, and yesterday she argued to the state's high court that the tribunals are not constitutional.

Public Defender Nancy S. Forster told the Court of Appeals that judges should not shed impartiality by sitting down with prosecutors, social workers and defense attorneys to try to help a defendant. She argued that judges should not be permitted to send a defendant to jail again and again without a full hearing each time, as she said judges in the drug courts do.

"There is no due process in drug treatment court," she said. * * *

The issue of the rights of individual defendants in drug courts drew more pointed questions from several of the judges. Judge Joseph F. Murphy Jr. noted that a judge's talking to one party without the other party being present, which might happen in a drug court case, has raised due-process concerns in other sorts of criminal proceedings. "Can you do that without violating the defendant's rights?" he asked Assistant Attorney General Michelle W. Cole.

As they have become more common, drug courts and problem-solving courts have faced questions about their effectiveness and about defendants' rights and judges' roles.

Last evening the ILB received some interesting comments from an attorney reader.

First, the reader pointed out that the Marion County courts were considering a proposed local criminal rule pertaining to ex parte communication in problem solving courts. The comment period ended Friday:

LR49 AR-00 309 Ex Parte Communication in Problem Solving Courts

In order to effectively monitor participant progress, a judge may initiate, permit, or consider ex parte communications when serving on therapeutic or problem-solving courts, mental health courts, or drug treatment courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others. All such communication will be promptly disclosed to all parties.

Second, the reader pointed to the new ethical canons for judges, effective January 1, including Canon 2.9 on ex parte communications. Comment #4 to Canon 2.9 provides:

[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others. [ILB emphasis]

What does the highlighted language mean?

• May it be read to imply that ex parte communications are already expressly authorized by "law" (i.e. statute) in regard to problem solving courts? If so, where?
  
• Or may it be read to mean that local court rules may expressly authorize by "law" (i.e. local rule, such as the proposed Marion County rule) the use of ex parte communications? And if so, does this mean that such ex parte communications are not authorized in the absence of local rule?

Thoughts?

Posted by Marcia Oddi on April 4, 2009 04:22 PM
Posted to Courts in general