The Problem of Wicked Wednesday

From the beginning of our exploration of bail policy in Santa Clara County, the question of Wicked Wednesday has loomed large. Wednesday is by far the heaviest day for arraignments in the county, which is why it has earned the nickname. The reason for this requires some explanation.

Arraignment is typically the first time a defendant appears in court. At this time, he or she will be formally charged and may enter a plea. Bail will also be set or modified. California Penal Code section 825 requires that arraignment take place within 48 hours of arrest. There is a catch, however. That 48-hour window excludes Sundays and court holidays. Therefore, if an individual is arrested on a Friday or Saturday, the clock does not begin ticking until Monday, meaning that he won’t appear for arraignment until the following Wednesday.

A public defender previously assigned to arraignments estimated that she routinely handled twice as many cases on Wednesdays as she did on any other day of the week. This makes sense when you consider that people arrested on Friday, Saturday and Sunday will all be arraigned on Wednesday.


The Question of Probable Cause

The term “probable cause” is used a number of times throughout criminal cases. For instance, when a person is arrested without a warrant, the arresting officer must have probable cause for the arrest to have taken place. This means the officer must have had a reasonable belief that the person was engaging in criminal activity. Probable cause can be based on the officer’s observation of activity that violates some law, such as driving a vehicle with defective equipment or failing to stop at a stop sign. It can also be based on the officer’s observation of suspicious behavior. A police officer is authorized to make a probable cause determination at the time of arrest.

Probable cause is also a factor in California felony cases that go to trial. Before the trial begins, a preliminary hearing is held. This is sometimes called a probable cause hearing. At this hearing, both the District Attorney and defense counsel are able to present evidence, call witnesses and question them before the judge. The judge will decide based on the evidence presented whether there is probable cause to proceed with a trial on the charges. Because some of the charges may be modified or dropped, a new criminal complaint called an information is filed by the prosecutor. The defendant is then arraigned for the second time, this time on the charges in the information. After that, the trial will be held.

The different stages of probable cause determination become important in terms of Wicked Wednesday because the Supreme Court of the United States decided a case in 1991 that examined the issue. The case, County of Riverside v. McLaughlin (500 U.S. 44), originated in California where the county of Riverside was combining probable cause determinations with arraignments. The law in the county tracked that of Penal Code section 825, requiring arraignments to be conducted within two days of arrest, excluding weekends and holidays. The county routinely conducted them on the last day possible. “Thus, an individual arrested without a warrant late in the week may, in some cases, be held for as long as five days before receiving a probable cause determination. Over the Thanksgiving holiday, a 7-day delay is possible.” County of Riverside, 500 U.S. at 47.

In deciding County of Riverside, the Court looked at an earlier case, Gerstein v. Pugh, 420 U.S. 103. That case held that the 4th Amendment required a “prompt” determination of probable cause. Using Gerstein as a starting point, the Court in County of Riverside held that in order to be constitutionally prompt, probable cause determinations must be held within 48 hours of a non-warrant arrest, with the burden on the prosecution to show that any delay was caused by “a bona fide emergency or other extraordinary event.” The Court goes on to state:

“The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends.” (Emphasis added, County of Riverside, 500 U.S. at 57).

The Court’s holding in County of Riverside made me wonder whether Santa Clara County was in compliance with it. Because defendants arraigned on Wicked Wednesday experienced a delay of more than 48 hours after arrest, it seemed that this might be the case. As far as I could tell, those individuals were not subject to a probable cause hearing prior to the arraignment. Nor did it appear that a probable cause hearing or determination was taking place at the time of arraignment. I needed more information.

I also needed to determine whether the Court was discussing probable cause for arrest or probable cause for continued detention. As discussed above, the two come into play at different times in the court process.

Finally, I needed to determine exactly what type of procedure the Court was requiring. In reading County of Riverside, I had seen the word “hearing” used as well as the phrase “judicial determination.” A hearing generally indicates a proceeding where counsel is present and able to argue the case. A judicial determination could be something less formal. 


Deconstructing Gerstein and County of Riverside

I began by reading Gerstein v. Pugh in its entirety. The individuals in that case were arrested in Florida and charged on a prosecutor’s information. There was no evidence as to whether there was a warrant for either man. Florida law at the time foreclosed the right to a preliminary hearing for those charged on an information. (Gerstein, 420 U.S. at 106). This made it seem like the issue had to do with the probable cause determination that in California occurs at the preliminary hearing. If this was the case, Santa Clara was certainly not compliant with the holding in County of Riverside because many preliminary hearings are held months or even a year or more after arrest.

Further reading of the case, however, made it clear that the Court was concerned with probable cause for arrest. The protection of the Fourth Amendment, the Court stated, “consists in requiring that those inferences [police officers’ assessment of probable cause for arrest] be drawn by a neutral and detached magistrate.” (Gerstein, 420 U.S at 113). A police officer may make an assessment at the time of the arrest but a judicial officer must promptly validate it. (Id. at 125)

The opinion in Gerstein also made it very clear that this judicial determination does not require the defendant to have assistance of counsel. (Gerstein, 420 U.S. at 122). Additionally, “the Constitution does not require an adversary determination of probable cause.” (Id. at 123). In other words, the probable cause determination does not have to take the form of a formal hearing. A magistrate may simply make the determination but it must be “prompt.”

This information explained a great deal but I was still left with questions. In an effort to clarify the issues and the meaning of the holding, I began reading the briefs and other documents filed with the Court at the time it decided County of Riverside. I found those documents on the legal research site Westlaw. Because users must have a paid membership to the site, I am unable to link to those documents and I was unable to find them elsewhere, but I will attempt to explain the pertinent details.

The briefs made it very clear that the issue was whether Riverside County was providing constitutionally prompt probable cause determinations for individuals arrested without a warrant. For those arrested on a warrant, the probable cause determination was made when a magistrate issued the warrant. Therefore, a further procedure was unnecessary. Riverside County appeared to be purposely waiting until the last possible day to arraign defendants and since the probable cause determination was made at the same time, some defendants had to wait as long as a week before a judge determined whether their arrest was supported by probable cause.


But What About Santa Clara County?

I then read the transcript of the oral arguments made before the Court in County of Riverside. Much to my surprise, about halfway through I found a reference to Santa Clara County! The lawyer for the respondents (that is, the people who were wrongfully held without a probable cause determination), was explaining that combining probable cause determinations with arraignment is only one way to approach the issue of promptness. Gerstein v. Pugh, he points out, offered flexibility to jurisdictions to form their own procedure that comported with constitutional promptness. He goes on to say, “In Santa Clara County, for instance, they do it by fax and telephone review… they don’t exclude weekends.”

This revelation changed everything. I contacted a Santa Clara County public defender who confirmed that during the booking process, at the same time that the on-call judge determines a bail figure, he or she also makes a probable cause determination from the arresting officer’s affidavit which is faxed to him or her. These determinations are made promptly and well within the 48 hours mandated by County of Riverside.

My journey through this legal puzzle made me realize how important it is to dig deeply and to explore supporting documents and collateral evidence when doing research. It was a valuable lesson and it was a relief to find that Santa Clara County has taken steps to provide an important constitutional safeguard to arrested individuals.


There Are Still a Couple of Problems With Wicked Wednesday, However

First of all, though the Court make clear in Gerstein that individual jurisdictions have flexibility to create procedures that provide for a judicial determination of probable cause within the constitutionally mandated time frame, the Court does not formally sanction Santa Clara County’s method in its opinion. The reference to it is found only in the oral argument and is offered in passing as an example of other approaches to the issue. It may be that fax and telephone review would pass judicial muster if challenged but it is also possible that it would not.

For one thing, the review takes place in relative isolation. There is no way to be sure judges are actually reviewing the information or just rubber-stamping it. This is a hazard of any type of review of course, but when others are present to create a record, it is less likely to occur. And while the Court made clear the determination does not require a formal hearing, fax and telephone review does not allow for any input at all from a defendant who is not a part of the procedure in any sense.

Finally, there is the impact of delay in arraignment for those individuals arrested over the weekend on the defendants themselves. At first glance, this delay does not seem unreasonable. It’s just a couple of extra days, after all. Consider, though, what those days mean to a defendant who is unable to make bail and has not been released on his own recognizance. He may miss work, resulting in sanctions or even loss of employment, especially since he may not be able to get word to his employer. That loss of income could mean the difference between having a home to return to and losing it. If he is homeless, he may lose what few belongings he has.

He may miss important deadlines relating to services he receives, resulting in the loss of those services. If his arrest coincides with a holiday, his appearance will be postponed even longer, increasing the severity of any repercussions. He is also subjected to the same harsh conditions as inmates who have already been sentenced for crimes. All these consequences go into effect even before the individual has been formally charged with any crime.

You might say, “He shouldn’t have committed a crime.” This rationale fails to take into account the presumption of innocence. In our judicial system, a defendant is not required to prove his innocence. Rather, it is the burden of the prosecution to prove his guilt. For him to suffer serious repercussions as he awaits arraignment seems to fly in the face of this presumption.

An obvious solution to the problem would be to schedule some arraignments on nights and/or weekends. This would of course entail substantial costs in court personnel, facilities and administrative work. It might however reduce some court congestion, as suggested by this white paper from Iowa. In any event, it is difficult to balance the financial costs of court operations against the negative impact delays have on defendants. It may be worthwhile for the county to explore possible solutions to this continued problem of Wicked Wednesday.