Justice Undercover 

How lawyers keep the public from seeing the court's business.

Attorney Saul Eisen says lawyer conferences help - "clear out the bullshit." - WALTER  NOVAK
  • Walter Novak
  • Attorney Saul Eisen says lawyer conferences help "clear out the bullshit."
Justice, or at least what passes for it, is supposed to be done in full public view. This stems from the quaint notion that, since it's your government, you have the right to scrutinize its every act.

And that's very much true in Cuyahoga County -- except in 98 percent of the cases.

Television would have us believe that most cases inevitably find their way to trial, where they are won by handsome young barristers whose cunning cross-examinations, surprise witnesses, and impassioned closing statements carry the day just before the credits roll. But the truth is more pedestrian than that. Only 2 percent of the county's cases actually make it to trial. The rest are sweated out in pretrial conferences, where opposing lawyers spill the guts of the case -- admissibility of evidence, previews of witness testimony, plea bargains, etc. -- with a judge often present. The entire case is wrapped up on the spot. The public definitely not invited.

A Scene reporter smacked into this legal brick wall a few weeks ago while investigating the Karen Spencer murder. Spencer's case would seem to merit heightened public access. She was, after all, an administrator for the Cuyahoga County Mental Health Board -- a public figure. And Assistant County Prosecutor Steve Dever, a public employee, is handling the case.

But when the reporter arrived at the pretrial meeting, he was told to leave. He cited the Supreme Court's insistence on public access to pretrial hearings. This, however, was a pretrial "conference," not a pretrial "hearing," Dever informed him. Leave.

Semantics aside, there appears to be little difference between the two -- other than that conferences aren't held in actual courtrooms, and judges aren't always present. Yet the distinction is significant enough to keep the public at bay.

"The law hasn't been real clear about the difference between the pretrial hearing and the pretrial conference," admits Dr. Richard Hendrickson, editorial page editor of Lorain's Morning Journal and a First Amendment scholar. "But even if [the pretrial conference] is permitted under some narrow language of law, it still goes against common sense and openness of the justice system if cases can be hashed out behind closed doors."

In this instance, openness has given way to pragmatism. Saul Eisen, president of the Cuyahoga County Bar Association, calls conferences a "great tool" for expediting cases. "Let's negotiate to see if there's a way to settle it or narrow down the issues, clear out the bullshit."

It's hard to argue against bullshit removal. But dig a little deeper, and lawyers' comfort emerges as the driving force.

According to Jay Wuebbold, spokesman for the Ohio Supreme Court, "people are more frank and honest in a closed setting." County Court Administrator William Danko adds that "there would be much more reserve and caution in the process" if conferences were open.

Other explanations are direct contradictions. Some lawyers say that, given the detail of discussions, opening conferences would compromise attorney-client privilege. Still others argue that privacy is necessary to isolate attorney from client.

"A lot of times, your client isn't wrong, but he isn't right," says Eisen. "You think if the judge pushes him just a bit, [the client] would settle. But you can't do that in open court."

There's also the argument that exclusionary justice does serve a public interest. The remarkable efficiency of pretrial conferences saves the system from hopeless gridlock, allowing us to swiftly process criminals and to continue to sue dry cleaners over coffee stains.

Besides, says Danko, the public vs. private debate is ultimately moot. Were the courts to close the loophole, attorneys would still skirt public inspection. "I definitely think that there would be some way the lawyers would find to subvert it," he says, "and they would just have those conversations somewhere else."

More by Thomas Francis


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