[Private] Court reforms

Yes, I probably should have made a separate topic for this.

To just make sure we're on the same page, there's nothing here I suggest we do unilaterally. Some of it definitely requires changes to the legal code and/or buy-in from e.g. the Bar Members, and some should at least be up for public discussion and critique before we do anything.

In terms of legal reforms, I had one idea in my campaign:

This is just a first step to prevent the (perceived) need for targeting the Court for shenanigans by a defendant. If an indictment is brought, we as Justices can't go in and modify anything without appearing biased, but have to just hand over an accepted indictment to a prosecutor appointed by the Delegate. Why are we involved in this step? We have the Bar Members, one of whom will actually do the prosecution, who could take up the indictment instead and see if they believe the crime charged is the correct one, and whether they'd be able to get a conviction.
I would also suggest that the power to appoint a prosecutor is removed from the Delegate and given to the Bar Commission or Bar Members, perhaps with a Court veto power if we fear the selected prosecutor would be grossly biased.
I don't see how St George can argue that he was in the right to publish that dispatch (Especially as the declassified logs indicate that Gorundu was going to tell TRR about the breach, as he had Rand), but I think Gorundu's indictment for espionage was an overreaction. If the prosecutor who had taken the case had downgraded the charge to gross misconduct earlier, we might be in a situation where it had been easier to accept a punishment, and be able to move on rather than engage in whatever circus this turned out to be.

I had thought about some kind of contempt function to punish bad faith usage of the Court, but I don't think that's viable. My reasoning is that if we punish the person who is indicted, that's possibly double jeopardy, and at least a miscarriage of justice (Making it incompatible with the BoR). However, a defendant is allowed to select their own counsel, so a punishment levied against the defence counsel can't be effective to deter bad faith (Defence counsel can't be removed and thus, if already in bad faith, won't be dissuaded). I also can't see a way to punish submissions of indictments in bad faith without major issues in terms of the general and equal access to justice. So I ruled out contempt of Court as either ineffective or unjust. If I'm missing something please point it out.
However, I don't think that's entirely the end of it. We can still implement a system to enable a Court to reject bad faith submissions or arguments, especially if someone attempts to get the entire Court to recuse itself. Thinking back, while our recusals were noble, I don't think all of them were strictly speaking necessary. Dreadton's R4R and Cretox's indictment just asserted that we had a conflict of interest, which we granted. I'm not sure we all had to:

4. A conflict of interest occurs when a Justice or Hearing Officer has a vested interest in a matter before the Court, or when they are otherwise unable to rule in a fair and unbiased manner.
5. Justices and Hearing Officers are required to recuse themselves from matters where they have a certain or potential conflict of interest.

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Eluvatar had a vested interest in the indictment, and I had a vested interest in the R4R, but that would still have left 2 Justices in each case to either accept or reject the R4R/indictment. A blanket request of recusal should, in my opinion, be examined more closely than we did.

To follow this, as the Court can become more of a forum of neutral arbitration, we can begin to discuss restorative justice. That's unrelated to the current case, since St George doesn't want to admit guilt, but a move towards restorative justice may indicate to future defendants that they don't need to block the Court from hearing the case, because the punishment will fit the damage of the crime, rather than the allegations or the crime charged in the first indictment.

Next, plea of no contest:
This is perhaps a minor thing, but I want to enable a plea of no contest in the Court Procedures, explicitly for actions without criminal intent, and where the crime alleged doesn't require criminal intent. You can't say "oops, I treasoned by accident", but you can say "ah yeah shit, the EC screwed up in this case". This follows on from my point about restorative justice: We should emphasise on preventing crimes from happening -- i.e. focusing on damage or criminal intent -- rather than being a blunt instrument bashing accidents and organised crime equally.

Lastly I suggest that we establish a shortlist of people generally available as THOs (This is probably the closest to pure bookkeeping and not an actual reform). As I said in my campaign I have thought about what we can do to get more people involved, but I don't see how e.g. a Court Clerk position can be relevant without giving them access to our internal deliberations, which I am loath to offer as an entry-level position, and without access a Court Clerk becomes an empty position. So on this I am coming up short, and hope you have some ideas.

I have thoughts but no time to write them up today. I will comment further by next Tuesday I think.

It was actually commonplace for the Court to pick THOs and have them standing by. I believe that’s where the term “standby hearing officer” was actually used. I recommend exploring the archives to confirm this as this is not a new idea so much as old practice that fell into disuse.

I'm not in a rush for comments, so just take your time. And, as any attempted reform will certainly be better received if we are in agreement, I would much rather take our time talking it through than rush out of the chambers with a half-baked idea.

Still not in a rush, but I would like some feedback on my suggestions.

I think the recusal section should explicitly allow for Justices to voluntarily remove themselves from a case due to simply being unavailable. Combined with us appointing THOs on standby, we could easily swap them out as needed to potentially move a case forward when it may be delayed by such things. Not only do I have recent events with the Delegate in mind here, but we have some R4Rs that are slowed down by our current Court's availability issues. I am not saying it is to the point where either of you should step aside, but I could easily see your absences being longer or more pressing and us losing weeks on these cases as a result. Recusal should happen when a conflict exists but we have to enable the Court to be flexible. In the past Justices would abstain, but that was basically code for "this person never replied for weeks and we just moved on without them" as kind of a way to save face. That could happen again even if it hasn't for a while, so I think since we're looking at this again, we ought to factor that in.

Officially incorporating a plea of no contest into the options would finally resolve the question of whether it is even an option or not, but I wonder if a lot of defendants would actually take it as an option outside of the plea deal scenario. To a degree I don't know if plea deal is something that can be regulated cleanly in this form, but I guess I'm open to seeing how it would be done.

To the first part, that's a good and uncontroversial idea.

I would not expect anyone to plead no contest without a plea deal, to be honest. Without a plea deal it is basically the same as pleading guilty. I would make that clear in the procedures or an accompanying note. As for how a plea deal would be regulated, I would make it clear that a prosecutor has discretion to amend an indictment, thus having the power to add or remove crimes, which was what we saw in the last case. Then a prosecutor on a case can downgrade the crime alleged to one that the accused can plead to, if the evidence for that crime is overwhelming, but more circumspect for the original alleged crime. I would also consider giving some deference to the prosecutor and defense in a plea agreement, as far as they come to an agreement over the length of a punishment.
Everything to do with pleas is controversial enough that I would first have a public hearing before implementing it into the Court Procedures. Giving the Bar the power to take cases without Court or Delegate involvement would require changes to the legal code too. 3.4 would need to be amended, possibly other parts of the legal code too.

So, with us being (almost) done with the R4Rs, I'd like to get back to this.

A publicly available list of people who are willing and able to stand by as THOs is within our power and doesn't seem controversial. I would post a public notice that we solicit feedback on it, but otherwise move to implement it soon. Following that, I would draft a change to the procedures allowing Justices to recuse themselves in cases, for instance if they are unavailable.

The option of pleading no contest is probably not controversial, so I would post a thread soliciting feedback with an update to the procedures that we can agree on. Depending on feedback we should get it done before the end of this Court term.

As for the changes that require changes to the law, can we get something posted in public as a collective (As the Justices, though, and not as the Court), or should we do it as individuals?

With the feedback to the public list of THOs being so uniformly positive, I would implement it over the weekend if you consent, @Eluvatar . I would populate the initial list with people who have served as Justice and members of the Bar, so there are a decent number of people I will have to approach and ask if they are willing to be on the list.

Could you run the list by me first before approaching, in case I can contribute to it?

Certainly.

Eluvatar:

Could you run the list by me first before approaching, in case I can contribute to it?

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Sorry about the delay. I got distracted by other things.

My list is compiled with two origins. The Bar Roster, and former Justices and Hearing Officers. The latter I used only those who had voted on rulings since 2020, retain citizenship, and not been convicted within the last year. Experience registers whether they have 1) been a Justice or THO, registering Justice if they have both; 2) are a member of the Bar; 3) have other Court titles. Availability is meant to be a simple yes/no, depending on whether they serve in a role that would bar them from serving as THO/SHO. I had originally thought to include whether the listed people are willing, but since I would approach all of them to hear whether they're OK with being on the list, I would imagine that no person would be on the list and unwilling.
I would have added people who have written good briefs, but they're either already on the list or have lost citizenship.

@Eluvatar is the list agreeable to you?

Oh, yes I think so.

With the THO out of the way, how do you feel about adding prosecutor discretion and adding the ability for justices to be absent to the procedures?

Probably positively? I may not be able to reply to this properly today.

I will take the liberty of prodding you for an answer.

I believe prosecutors should have discretion - the law already contemplates this by giving them the option to discontinue management of cases. So court procedures can definitely err on the side of explaining the obvious (think how they explicitly allow justices to extend time or expect certain missing items, like oaths in evidence) and say something positive about prosecutorial discretion. As for the absence, always good to clarify these things, and make a point of separating them from recusals, which is a bit of a loaded term and has a particular context. I would just note that I don't think you have to go too into the weeds with it. Make it clear they have some discretion on modifying charges and so long as the Justice deems it appropriate, it should be one option on the table. I believe real life judges can have some input on whether or not a sentence change or plea deal happens or how extensive it is, so just make sure there's some judicial oversight with it. But don't go overboard - keep it simple.

I think your list of THOs makes sense, and we should standardize having a list to draw from. They need to be as much of a standby thing as members of the bar, in my opinion.

As indicated in my campaign I'm most definitely on board with the proposal for judicial absence, and also agree with the proposal for judicial recusal.

On the subject of no-contest, plea deals and prosecutorial discretion I am more on board with them having read up on this discussion than I was before. However, I feel that (as it is IRL) the moderating justice has to have the final decision on whether a sentencing change is accepted, or a plea deal allowed to stop the process being abused.

I had expected some pushback on the topics from you, but I do definitely welcome your tentative support from just reading the discussion here.
@Eluvatar if you're OK with it I will see if I can get to write some draft revisions to the Court Procedures.

I can't promise I'll support whatever you write, but please go ahead. I unfortunately have no time to draft procedure revisions right now.

A wizardJustice is never late. He arriveswrites exactly when he meant to!

@Eluvatar @Wymondham I know there are a lot of other things going on, so I just want to make sure you didn't miss this.
The process as I imagine it is that if we agree on a change, because these are maybe more controversial than the THO one, we post the proposed wording in the respective threads for public comment before implementing.
But before that, if you have comments, want changes to anything, or can't see one of them work at all, that will have to be worked out.

I will look them over when I get a chance. It might not be until Tuesday.

@Eluvatar and @Wymondham Bumping this to see if we can come to an agreement.

I'm afraid I have limited attention at this time.

We are nearing the election, so I would prefer to either publish the reforms for public comment now, or leave it for the next Court to decide.

Ack. I have no time due to the R4R and Z-day.

Would you be OK with me posting the draft revisions for public comment? It will be up to the next Court to decide whether to go forward, but since it has been my pet project I would like to put it out there before I leave the bench.
@Wymondham @Eluvatar

I read the first two and see no issue. I haven't fully read the Plea of No Contest changes but I wonder if they could be less wordy. That said, I agree with the direction I think you're trying to go in and you should feel free to post where appropriate.

I concur with Elu