Case Closed

Hennepin County District Court Judge Kevin Burke says judges need to explain "what we do and why we did it"
Daniel Corrigan

At the back of each of the 60 courtrooms at Hennepin County District Court there's a heavy wooden door. To get to it you have to thread your way through the swinging gates that separate the public seats from the attorneys' tables, past the judge's raised bench and the court reporter's desk.

Defendants are escorted in and out of this door by uniformed bailiffs. When the judge strides through it, everyone rises. And from time to time all the lawyers head past it, only to reappear with a Machiavellian gleam in their eyes.

There's no sign on the door explaining where it leads, much less what's going on back there. It's not unusual for members of the public to wait hours for the folks with the law degrees to come out, take their seats, and go through the motions of transacting whatever piece of legal business has been ironed out behind the door.

Inside the courthouse, the goings-on in these judicial cloisters--officially known as judges' chambers--have been the subject of perhaps the longest-running sniveling campaign in county history. The simmering irritation finally erupted into a full boil last month, when Hennepin County Chief Judge Daniel Mabley and Assistant Chief Judge Kevin Burke took the unusual step of whipping off a three-page letter to Hennepin County Attorney Amy Klobuchar, in essence accusing the chief prosecutor of scoring political points at the expense of the judiciary.

At issue was the saga of Sandra L. Hart, a 44-year-old Minneapolis woman who was sentenced in January on her tenth offense related to drunk driving. The case had provoked a public clamor for tougher sentences: Along with a host of area lawmakers, Klobuchar had urged the state Legislature to pass a law making a fourth drunk-driving conviction within a ten-year period a felony. (Under current law, any drunk-driving offense is a misdemeanor or a gross misdemeanor, punishable by sentences less harsh than those reserved for shoplifters or people caught with small amounts of drugs.)

What set off Mabley and Burke, according to the flurry of correspondence the matter has spawned, was a St. Paul Pioneer Press editorial supporting Klobuchar's proposal, and decrying the "limp reality behind Minnesota's get-tough rhetoric." Hart had been sentenced to six months in the workhouse, the January 27 editorial noted. Yet "prosecutors say Hennepin County Judge Stephen Swanson even refused their request that Hart be required to actually serve the full six months. Instead, she will be eligible for supervised release after 21 days."

Blaming the judge for the plea bargain struck in the Hart case was "patently unfair," judges Mabley and Burke wrote in their letter. "If [the deal] was so undesirable that it merited negative comment in the media, we cannot understand why there was no request in open court for Judge Swanson to reject [it]," the pair wrote.

When Klobuchar fired back, she noted that the judges weren't considering what had gone on behind closed doors. "I specifically directed our lawyer to request that Hart's full sentence be served in the workhouse," she wrote in her response. "Our lawyer had in fact made that request in chambers." Judge Mabley is out of town for an extended period; both Burke and Klobuchar refuse to comment on the specifics of the incident, saying they consider it resolved.

But if the episode seems like a tempest in a teapot, there are plenty of people who say it provides a glimpse into one of the more mysterious aspects of local courthouse culture. An awful lot of business is done behind closed doors, according to a 1994 report issued by WATCH, an volunteer group that monitors the Hennepin County courts. "Overwhelmingly, our volunteers have expressed surprise at how little actually goes on in the courtroom," the document notes. "They have commented that when the proceedings finally do move from chambers to the courtroom, they often seem scripted.

"Trust is not enhanced by in-chambers negotiations," the report adds. "WATCH has heard defendants, left waiting in the courtrooms while the defense attorney, prosecutor and judge are in chambers, commenting that their attorney is 'selling them down the river.' Victims have expressed similar uneasiness as they wait to hear the terms of a possible plea agreement and/or sentence."

Tom Johnson, Hennepin County Attorney from 1979 to 1991 and now the president of the local research group Council on Crime and Justice, describes off-the-record negotiations as a "seductive efficiency." It's often easier to get things done in an informal discussion, he points out--especially since most criminal cases end with the judge accepting a plea agreement hammered out by the prosecutor and defense attorney. "But that doesn't mean that they shouldn't start moving things back into the courtroom, back onto the record," Johnson continues. "As a general principle, both the criminal justice system and the general public is better served by having more happen in open court on the public record."

Judge Lucy Wieland, who participated in a meeting held to air the issues raised in the letter, notes that some 5,000 felonies are charged in Hennepin County each year, but only about 350 go to trial. "Obviously most get settled and the question is how," she points out. "The judge getting up to speed on the case--that has to happen. [What goes on in chambers] is background work.

"What happens," Wieland adds, "is that because everyone talks this out in chambers, you get out in the courtroom and do it in shorthand because you've just had a meeting of the minds." When people get upset about that, she says, it's usually because "we don't explain it as thoroughly as we could."

Judge Burke, too, can reel off a list of reasons to hash out cases off the record. Sometimes the in-chambers discussion includes sensitive information, such as graphic details about a sexual assault. More often, he says, public defenders want the other parties to know that although they consider a plea agreement fair, their client will not agree to it.

By the same token, criminal defenders are quick to complain that prosecutors often cut deals in chambers, then object on the record to appear tougher. And attorneys on both sides say judges like private negotiations because they give them more control over what happens in their courtrooms.

Steve Redding, the managing attorney of the Violent Crimes Division of the county attorney's office, says his office urges local prosecutors to put as much information as possible on the record--in part because it may be critical in appeals or future cases. "We know that a file we create today may be examined two, three years down the road for whatever reason," he says. Prosecutors are also supposed to write memos detailing the reasoning behind plea agreements, Redding adds, and to create a record of what they would recommend if an offender violates probation.

Still, maintains Judge Burke, judges have a responsibility to make sure the public understands "what we do, why we did it, and what we took into account. It's the nature of what judges do to end up in the hot seat. But it's important to me for judges to think about how to articulate the reasons for their decisions in open court." Research demonstrates, he notes, that openness has practical benefits: "If a person perceives that a judge listened to what they had to say and took it into account, there's a higher probability that they will obey their sentence."

In the end, the exchange of letters about the Hart case may not add up to much more than a rare venting of steam built up over the years. Everyone involved seems anxious to make sure that nothing more is said in public: Many of the courthouse insiders contacted for this story vociferously complained about other players and the system at large while insisting that their remarks remain off the record.

For now, the last word on the matter may be the letter Judge Mabley sent to Klobuchar after she and several judges met to discuss the flap: "I feel the relationship between your office and the bench has recently become characterized by a spirit of cooperation and constructive change," he wrote. "Your willingness to resolve this current dilemma is further evidence of that spirit."

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