Where have all the judges gone?
This story was written by Post-Gazette staff writer Jon Schmitz, based on his reporting and that of Jan Ackerman, Ann Belser, Timothy McNulty, Torsten Ove, Mike Bucsko, John M.R. Bull, Bill Heltzel, Jonathan D. Silver, Gary Rotstein and Lawrence Walsh.
By any standard, the case of Commonwealth vs. Smith was small potatoes. But it became part of the waiting game that is played every weekday in Allegheny County courts.
Richard Smith and Margaret Lee-Smith were charged with not returning $700 worth of tapes to a Lawrenceville video store. They were ordered to attend a hearing at 9 one recent morning.
Two Pittsburgh police officers, the store owner and the defendants arrived at Common Pleas Judge Jeffrey A. Manning's courtroom before the scheduled time.
They needn't have been so punctual.
Manning didn't show up for work until after 10:30 a.m., when he steered his black Lincoln Continental into the judges' reserved parking lot on Third Avenue. It would be nearly 11 when he finally took the bench.
Even then, the participants in Commonwealth vs. Smith weren't finished waiting.
After spending 10 minutes in session, hearing other routine matters such as pleas and postponement requests on other cases, Manning abruptly called a recess and, without explanation, disappeared for another 35 minutes.
The Smiths, who had agreed to make restitution to the store owner in exchange for dismissing the charges, sat in the back row of Manning's courtroom with their two small children, trying to keep them quiet.
Manning's staff told the Smiths to take the children out of the courtroom, then scolded the Smiths for not being in the room when they were needed to sign papers.
It was after noon when the parties to Commonwealth vs. Smith got their six minutes before Manning. He approved the restitution agreement.
The police officers, who had been in court nearly four hours, did nothing other than sit and wait for the case to be heard. Their salaries for the morning cost city taxpayers $160. One officer, Patrick Harlan, was pulling overtime; the other, Lisa McCoy, was away from her beat.
Commonwealth vs. Smith is emblematic of a culture that permeates Allegheny County Common Pleas Court.
Each day, defendants, victims, witnesses, police officers, jurors and court personnel wait and wait and wait. The judicial system staggers along, weighed down by procedures and customs that seem geared to the convenience of only the judges.
The judges, for their part, say much of the waiting is beyond even their control.
There aren't enough prosecutors or public defenders, so attorneys in criminal cases often are scheduled in several courtrooms at the same time, several criminal court judges said.
Defendants show up late, then hedge and waffle in deciding whether to accept plea bargains or to roll the dice on jury trials. Because of the volume of cases, the trial date is generally the first time all parties get together to negotiate plea bargains.
Manning said attorneys and litigants in cases in his courtroom were almost never ready to begin on time.
After eight years in criminal court, Manning said, he has concluded that getting the system to run smoothly was ''like trying to teach a pig to sing.''
But many judges contribute to the problem by arriving to work late, leaving early and taking long lunch breaks, unencumbered by any requirement that they account for their time to anyone.
Neither the president judge, Robert E. Dauer, nor the administrative judges who head each division of the court system keep track of the judges' time.
Dauer said he believed most judges worked more than eight hours per day, but he was powerless if they didn't.
''I have no control as president judge over what judges do,'' he said. ''Judges are elected by the [people] of Allegheny County.''
On Friday afternoons, the court system virtually shuts down as many judges and their tipstaves, secretaries and law clerks get an early start on the weekend.
''I have always believed that a Common Pleas judgeship is the plum position in all of the judiciary,'' said Caroline Roberto, a defense attorney who chairs the criminal litigation section of the Allegheny County Bar Association.
While the judiciary enjoys a muddy version of flex time that would not be tolerated in most private businesses, others in the court system must adhere to rigid timetables.
People who are summoned to jury duty are instructed to arrive by 8:30 a.m., only to wait. Witnesses, including scores of police officers who are subpoenaed to court each day, must arrive at or before 9.
Most judges schedule multiple cases to begin at the same time, guaranteeing delays for at least some of the parties.
The result is a morass of unresolved cases and wasted time.
For years, judges and others have asserted that Allegheny County's court system was a national model of efficiency among large urban systems.
There appears to be no comprehensive, reliable studies either to support or refute that claim. Because of differences in the structure, size and jurisdiction of court systems, comparisons are difficult.
But there is no dispute that there is always a large backlog of unfinished work in Allegheny County.
In civil court, it takes an average of nearly three years to get a case to trial. That is well outside the American Bar Association's standard that 90 percent of civil cases should be resolved in one year and all cases, barring exceptional circumstances, should be cleared within two years.
In criminal court, 13 full-time judges and two part-time senior judges deal with 16,000 cases a year, many in rapid-fire fashion. But the system also operates at a far slower pace than that recommended by the American Bar Association.
ABA standards - which the association says are not met by most urban court systems - call for 90 percent of felony cases to be adjudicated within 120 days of the arrest and 90 percent of misdemeanors to be handled within 30 days.
The average criminal case in Allegheny County last year - including felonies and misdemeanors - took 246 days from arrest to adjudication, according to the county court administrator's office.
A Pittsburgh Post-Gazette analysis of 50 homicide cases from 1996 showed that the average completed case took 327 days from arrest to adjudication.
At any given time, there are roughly 8,000 criminal cases and 6,000 to 6,500 civil cases pending in the county courts.
Sitting and waiting comes at a cost.
The City of Pittsburgh has spent $3 million during the past two years paying police officers who were subpoenaed as witnesses in criminal cases in Common Pleas Court. Some police officers made so much court-related overtime that their salaries surpassed that of Mayor Murphy, who earns $81,222.
On any given morning, the Courthouse could well be the safest place in town. Its hallways are clogged with city, county and suburban police officers waiting for hearings and trials to begin.
A team of Post-Gazette reporters observed the operations of Common Pleas Court during
the past five months. This included random visits to the courtrooms of many of the
system's 41 judges.
Common Pleas judges have their own reserved parking lot on Third Avenue, between the former county jail annex and the Grant Building. It is a block from the Courthouse and just steps from the City-County Building.
At 9:15 a.m. on a recent January morning, 45 minutes after the official court workday began, several judges had not yet arrived, judging by the abundance of empty spaces in the lot.
Over the next hour, 11 judges would drift in, along with one former judge - Raymond L. Scheib - who, for reasons unclear, still enjoys free parking privileges.
Arriving between 9:15 and 9:30 were criminal court Judges James McGregor, W. Terrence O'Brien, John Zottola, Donna Jo McDaniel and David Cashman, and Orphans Court Judge Paul A. Zavarella.
McDaniel, backing into a space in her green Buick Park Avenue, bumped into a Subaru station wagon owned by Judge Bernard McGowan. Without checking to see whether there was damage, McDaniel pulled across the lot to another space.
From 9:30 to 10, Judges Alan Penkower, Patrick McFalls, Robert Horgos, John Musmanno (now a Superior Court judge) and Kathleen Durkin arrived. Penkower, McFalls and Horgos are in the civil division and Durkin the criminal division.
McFalls, backing his Mercedes into place, nudged the bumper of Cashman's green Cadillac. He pulled forward a bit, got out of the car and left without checking for damage.
Judge Jeffrey A. Manning pulled his Lincoln into the lot at 10:32 a.m. Displayed in the rear window, on the driver's side, was an Allegheny County Chiefs of Police Association ball cap.
Waiting on the late-arriving judges were scores of litigants, lawyers, defendants, jurors, court staffers and witnesses.
Among the witnesses were 39 Pittsburgh police officers who had checked in before 9 a.m. for cases scheduled in front of the seven late-arriving criminal court judges. Twenty-eight of the officers were on duty - and therefore away from their posts - and the other 11 were on overtime.
Several judges, particularly those in criminal courts, said it was pointless to arrive
earlier because lawyers, witnesses and defendants were never ready to start on time.
For most people who are not members of flag organizations, Flag Day, June 14, passes with little or no fanfare.
In the Allegheny County courts, Flag Day will be observed with the same reverence as a major holiday - namely, a day off.
Because it falls on a Sunday this year, Flag Day will be observed on the following day, when the courts will be closed. It is one of 15 paid holidays in the court system.
There are unofficial holidays that further intrude on the court's operations.
The Allegheny County Bar Association's annual Bench-Bar Conference, a three-day festival of golf and tippling in mid-June at Seven Springs Mountain Resort, virtually shuts down the system.
The county sheriff's annual Christmas party, held on a weekday in December, means a half day off for virtually all judges and their staffs.
At 2 p.m. on Friday, Dec. 19, the day of Sheriff Pete DeFazio's party on a docked riverboat, the courtrooms of 27 of the 30 full-time criminal and civil judges were empty.
In the criminal division, Judge David R. Cashman was at the computer on his bench, but court was not in session. On the civil side, only Judges Joseph M. James and R. Stanton Wettick Jr. were holding court.
The days just before and after holidays also tend to be drawn into the holiday vortex. Good Friday is an official court holiday, but Easter Monday is not. Still, many judges observe it.
Christmas Eve and the day before Thanksgiving are not official holidays, but after noon on those days one is hard-pressed to find any work going on.
For some employees, there is another, more frequent unofficial holiday. It is called Friday afternoon.
The Post-Gazette visited courtrooms in the civil and criminal divisions on five Friday mid-afternoons last year (in addition to the day of the sheriff's Christmas party).
l Feb. 14, 1997 - three of 30 courtrooms were in session - open and occupied.
l Sept. 19 - six of 30 in session.
l Sept. 26 - three of 30 in session.
l Oct. 3 - 10 of 30 in session.
l Oct. 10 - four of 30 in session.
Official working hours at the Courthouse would warm the heart of the flintiest union boss. The work day for employees is 8:30 a.m. to 4:30 p.m., with one hour for lunch - a seven-hour work day.
But some judges consider 9:30 a.m. to be the start time. And rare is the lunch break that is confined to one hour; one judge apologized to jurors recently for limiting them to one hour and 10 minutes.
The judicial parking lot begins to empty at or before 4 p.m., with different judges leaving early on different days. Some judges stay past the official 4:30 quitting time.
By unwritten rule, judges are to have four weeks' vacation. But recent events have demonstrated that judges are virtually unrestrained when it comes to taking time off.
There is no requirement that judges keep track of or report their time spent on the job. A rule that they submit monthly reports of days worked to the state Supreme Court was scrapped last year. No one was paying attention to the reports, anyway, according to the Administrative Office of the Pennsylvania Courts.
In September, three Civil Division judges declined to take cases during a six-week term of jury trials. Instead, the judges, Joan Orie Melvin, Robert C. Gallo and Gene Strassburger, virtually shut down their courtrooms to campaign statewide for higher judicial office.
Musmanno, the civil administrative judge at the time, did nothing to intervene. He,
too, was seeking higher office.
When late starts, early departures and long breaks are factored in, a workday can shrink to a fraction of its intended size.
Take the case of Markowitz vs. Klein, a 4-year-old civil lawsuit that was tried recently before Gallo.
At 9:15 a.m. on the third day of the case, jurors lounged on a row of wooden chairs in the hallway outside Gallo's courtroom. They were early, having been instructed by Gallo to arrive at 9:30.
The plaintiff, an electrician who was badly hurt when an attic stairway collapsed Dec. 24, 1992, was sitting in the courtroom. Nearby were the homeowners he was suing. Their attorneys were there. So was the court reporter.
Testimony could have begun right then, except that Gallo was holding court elsewhere.
At that moment, 45 minutes into the court's workday, Gallo was across the street at the Au Bon Pain restaurant in One Oxford Centre, sipping coffee with Judges Paul F. Lutty Jr., Robert A. Kelly and two other people.
Judge Lawrence O'Toole sat at another table nearby, reading a newspaper.
Back at the City-County Building, Gallo's tipstaff, Michael Horgos, brother of Judge Robert Horgos, chatted with the jurors and the court reporter. He paced in the hallway. Gallo arrived at 9:34 a.m.
It would be 10:02 a.m. when Gallo took the bench.
''Ready to proceed?'' he said.
At 11:08 a.m., Gallo called for a ''five-minute break,'' which lasted for 27 minutes. He sent the jurors to lunch at 12:02 p.m., with instructions to return at 1:30 p.m.
After lunch, the jurors worked from 1:32 p.m. until 3:27 p.m., when testimony in the case was concluded. They had one ''five-minute break'' (actual elapsed time, 15 minutes.) They went home with Gallo's instructions to return ''at nine-thirty or quarter to 10'' the next day.
''We'll definitely start by 10,'' Gallo said.
Gallo left the City-County Building at 4:20 p.m.
The case of Markowitz vs. Klein was a day older, but only 3 hours and 13 minutes closer to completion.
The case ended the next day with a jury verdict for the defendants.
Jury forewoman Dolores Workman said later that she had favorable impressions of the court system and Gallo. But she said the trial easily could have been reduced from four days to three if court had started earlier than 10 a.m. and continued beyond the customary 3 p.m. quitting time.
Gallo, in a later interview, said he was at a loss to explain what happened that day,
but defended himself and his work ethic: ''We start at 9:30. We are very prompt. Jurors do
not wait for Judge Gallo.''
Gone before lunch
Seated at the bench in his courtroom, Judge Gerard M. Bigley leaned back in his leather chair, removed his glasses and rubbed his eyes.
But this day would hardly tax the stamina of the court. Bigley would dispense with two criminal cases and be gone from the Courthouse before lunch.
He accepted a guilty plea from a Mount Washington man on charges he stole drugs from South Side Hospital. The theft had occurred seven months earlier.
Bigley then presided in a brief non-jury trial of a North Side man accused of aggravated assault nine months earlier. Bigley found the man not guilty.
Parties to both cases - the defendants, witnesses, police officers and attorneys - had been ordered to arrive by 9 a.m.
Bigley arrived in the Courthouse at 9:25 and took the bench at 9:52. The cases were completed and the judge was gone - for the day - at 11:30 a.m.
A court clerk, Al Russo, said Bigley had an appointment outside the courtroom.
Caroline Roberto, a practicing defense lawyer for 15 years, said it was not uncommon for judges to conclude their scheduled cases by early afternoon.
''It's not the fault of the judges that their workday is finished by 2 o'clock,'' she said. ''So many litigants work out plea agreements or postpone their cases for valid reasons. There are very few [cases] that take any time.''
Roberto said she wished judges would use the down time as a ''springboard for
intellectual pursuits'' - to teach, lecture, publish articles and generally ''contribute
to the professionalism of the bench.''
Judge S. Louis Farino apologized to the jurors hearing a medical malpractice case in his courtroom.
It was 11 minutes before noon, and Farino had asked them to abide an unusually short lunch break. He wanted them back by 1.
Aside from that, it was a fairly typical day in court. Parties to the case began arriving shortly before 9 for a scheduled 9:30 start. Last among the participants to arrive was Farino himself, at 9:49. He immediately called the attorneys into his chambers.
Court was in session at 10:10. There was a 16-minute recess starting shortly before 11. That meant the jurors worked less than 90 minutes before being sent to their ''abbreviated'' 71-minute lunch break.
The jurors deliberated after lunch and quickly returned a verdict in favor of the
defense. By 3:15, the courtroom was locked and dark. At 3:35, Farino left for the day.
'The judge said so'
It was 9:30 a.m. when a member of Judge Walter R. Little's staff unceremoniously taped a handwritten sign on the courtroom door. Several hearings on probation violations scheduled for that day were to be postponed for a week.
A handful of people had waited an hour for this information. One of them asked the staffer why the cases were postponed.
''Because the judge said so, that's why,'' the woman replied.
A reporter later got a clearer answer. Little was out of town, according to his secretary.
Little told the Post-Gazette he had notified the county's probation office that he
would be away.
Fidgets & football
Twenty-two people were sitting in Judge Manning's courtroom when he took the bench at 10:59 one morning. Many had been waiting two hours or more.
Among them were the Smiths, who were there to resolve theft and conspiracy charges against them, stemming from their failure to return videos.
Their summons had ordered them to be in court by 9 a.m. or face additional criminal penalties.
Also there by subpoena were two city police officers, Lisa McCoy and Patrick Harlan. McCoy checked in at 8:25 and Harlan at 8:47.
Participants in several other cases scheduled in Manning's courtroom that day also were ordered to be there at 9. There was no way all the cases could begin simultaneously, so some people were virtually assured of a long wait.
It took Manning 10 minutes to deal with the first three cases - two pleas and a withdrawal of a plea.
Court clerk Ralph Fetzer was about to call the next case when Manning spoke up, saying, ''No, no. I have to take a recess.''
The Smiths conferred briefly with their attorney, Assistant Public Defender Sumner Parker. He told them to wait in the hall.
A short time later, Fetzer called for the Smiths to sign some papers and seemed irritated that they were not in the courtroom and had to be summoned.
''It's my job to get everyone out of this courtroom by lunch, including the judge, including you,'' he told Richard Smith.
The Smiths signed the papers and sat down to wait some more. As the recess dragged on past 11:30, their boys grew fidgety. By now, most of the people in the room, including attorneys, court personnel and others, were chattering among themselves.
Defense attorney Bruce Carsia, his client, Virgil Harry McClendon, and Fetzer stood by the judge's bench, talking about football loudly enough to be heard in the back of the courtroom.
But the children, shuffling back and forth in the back row, caught the eye of Manning's tipstaff, Julius Caye.
''Ma'am, you have to take the small children out in the hallway,'' he told Margaret Lee-Smith. She complied.
Manning returned to the bench and accepted a guilty plea from McClendon on a cocaine charge.
When the Smiths' case was finally called, Margaret Lee-Smith was still in the hallway with the children.
Fetzer threw up his arms in frustration and muttered about having to ''try the case in the hallway.''
With the Smiths standing before him, Manning listened to the details of the agreement and added a provision - in addition to paying $724.05 in restitution to the video store owner, the Smiths had one year to pay the costs of prosecution - $284.
''If they can come up with $700 to pay the victim, they can come up with another couple hundred,'' Manning told Parker.
The Smiths' case was the final one on Manning's morning menu. At 12:16 p.m., with 41 minutes of business having been transacted, court recessed for lunch until 1:30.
Manning told the Post-Gazette he generally arrived between 9 and 10 because cases were never ready to go before then. He said he worked until 5:30 or 6 each day.
In addition to handling his full share of criminal cases, Manning for several years has volunteered to hear civil cases for eight to 10 weeks each year.
''I have a little difficulty in anybody questioning my work ethic in this courthouse,''
he said. ''I don't know what my colleagues are doing, but I'm satisfied that I'm putting
in a whole day and then some.''
The lights were still burning in Judge Livingstone M. Johnson's courtroom, long after every other trial judge in the system had left for the day.
A jury was deliberating in an automobile whiplash case. Johnson had granted the jurors' wish to stay and complete their work, even though the deliberations stretched past 7 p.m.
The jury returned with an $8,400 verdict for the plantiffs shortly before 7:30. Staying late spared jurors from having their lives on hold for another day.
One attorney said he wished more judges had Johnson's work ethic.
''Why can't you work until 5 or 5:30? Most of these juries would rather work late than have to come in for a month and a half,'' said the attorney, speaking anonymously.
''You have three-week trials that could be over in two weeks. You're asking people to put their lives on hold. A few more hours [on the bench] wouldn't kill them,'' agreed another attorney.
Several attorneys singled out Johnson and Judges R. Stanton Wettick Jr. and Joseph M. James, all in the Civil Division, for exemplary work habits. (Johnson last year reached the mandatory retirement age of 70).
After taking the late jury verdict and meeting with the jurors, Johnson was at work until nearly 8, completing an 11-hour workday.
He had stayed until 6 p.m. the night before, working with attorneys on legal instructions to the jury, the attorneys said.
A month earlier, working on a different jury trial, Johnson had arrived for work before 8:30 a.m., started testimony at 9, adjourned court at 3:50, and then held a series of meetings with attorneys in other civil matters.
When the judge finally locked up and left, it was 7:05 p.m.
The campaign trail
After Labor Day, the civil division geared up for a six-week trial term - one of five periods during the year when jury trials are held.
The courts would limp through this term without three of the 12 judges who typically preside in trials. The three instructed Judge Bernard McGowan, the scheduling judge, not to assign them any cases.
None of the three - Melvin, Strassburger and Gallo - wanted the burden of jury trials to impede their campaigns for higher office. Melvin and Strassburger were running for Superior Court and Gallo for Commonwealth Court.
A Post-Gazette investigation revealed that the three virtually shut down their courtrooms for several weeks and spent numerous weekdays out of town campaigning.
As a result, fewer cases were chipped off of the 6,000- to 6,500-case Civil Division backlog. Lawyers and their clients were kept waiting.
The administrative judge in the Civil Division, John L. Musmanno, said it was not his place to stop the campaign activity. Musmanno at the time was himself running for Superior Court. He said he spent little time traveling during the campaign and did not neglect his court duties.
Melvin and Musmanno were elected to Superior Court. Gallo and Strassburger lost their elections.
Judge James H. McLean, who took over last month as administrative judge for the civil division, said the campaigning took its toll.
''Judge Musmanno told me there was a noticeable falloff in case dispositions last year. That was attributable to having four judges on the campaign trail. I don't know of any system that could have four judges actively campaigning and not show some adverse effects,'' McLean said.
Asked whether judges should be allowed to campaign at the expense of their duties, McLean said: ''If it's wrong, it's the system that's wrong, not the people. A judge should be able to aspire to a higher court.''
In civil courts, the average time to resolve cases - including those that are dismissed or settled - was nearly two years. If a case goes to trial, the average life span is three years.
''We can do better than that,'' McLean said. ''I hope we can do better.''
You can wait
Some judges in the civil division have placed rows of chairs in the hallways outside their courtrooms as a convenience to jurors, who frequently endure lengthy waits during trials.
The seating does not always appease impatient jurors, as witnessed one morning outside Judge Paul F. Lutty Jr.'s courtroom.
Nearly 40 minutes had passed since the scheduled 9:30 start of testimony in a lawsuit stemming from a construction dispute. Finally, Lutty's tipstaff appeared and said, ''OK, gang, we're ready.''
A juror slowly closed his book and gathered his belongings, appearing to be in no hurry.
''If we can wait for you, you can wait for us,'' the juror grumbled.
No sooner were the jurors in the courtroom when they were sent back outside for 20 more minutes, while the late-arriving judge conferred with attorneys.
Lutty said attorneys often don't get serious about trying to settle cases until a jury has been picked. While the lawyers dicker, the jurors wait.
''Most jurors would rather [wait] for a couple days than have to sit in a jury trial
for 29 days,'' Lutty said.
Police cool their heels
It was another morning at the judicial parking lot, and judges were arriving fashionably late.
Meanwhile, a good portion of the city police force was hanging out in the Courthouse corridors, waiting for cases to be called.
On this day, 62 officers were subpoenaed to testify, and 44 had arrived before 9 a.m.
They were among more than 100 witnesses who were milling around inside and outside the district attorney's witness room on the third floor, waiting for judges to arrive.
City police are paid for their time in court. Those who are on duty get their regular pay. Those who are off duty are guaranteed a minimum of 4.5 hours of straight-time pay. For a five-year veteran, that's a minimum of $91.31.
Later this year, city officials will launch a program to try to reduce the cost of sending police to criminal court. The city spent $1.3 million in 1996 and an estimated $1.7 million last year. Officials want to cut down on needless trips to court and excessive delays.
''All of this will depend on the cooperation we get from the judges and the district attorney. I have no reason to believe they won't be cooperative,'' said Kathleen Kraus, city public safety director.
On this particular morning, when Judge Raymond Novak pulled his sport-utility vehicle into the parking lot at 9:18, five officers had already arrived for cases in his court. They had begun arriving at 8:26.
When Judge Lawrence O'Toole arrived at 9:30, eight officers were waiting for various cases. They had begun arriving at 8:25.
When Judge Kathleen Durkin pulled in at 9:32, there were five officers waiting for her. Four had been there more than an hour.
''Since I've been a lawyer, since 1975, I've never seen court start before 9:30,'' O'Toole said in an interview later. ''I'm on the bench every day at 9:30. Things are never ready to go. You get an awful lot of lawyers who simply have not talked to their clients.
''Jurors are supposed to be here at 8:30. I know they get cranky. They sit there and wait. They get mad. I don't blame them,'' he said.
Once again, Manning was the straggler, arriving at 10:18. Six city police officers had signed in as witnesses in Manning's scheduled cases, arriving between 8:25 and 8:57.
Six relatives of a 14-year-old girl who said she was molested by a 74-year-old man had been in the hallway outside Manning's courtroom since 8:45.
Thirty minutes before Manning's arrival, there were 32 people in his courtroom and 22 in the corridor just outside.
In Allegheny County's court system, it was just another day.