Douglas County District Court chief judge defends court’s processes, agrees serious felony crime is increasing

Douglas County District Court Chief Judge Peggy Kittel

You can count Peggy Kittel, the chief judge for Douglas County District Court, among those who are concerned about crowding issues at the Douglas County Jail.

You can also count Kittel among those who have seen signs, at least anecdotal, that violent crime is on the rise in Douglas County. But don’t yet count Kittel among those who say changes to the Douglas County court system could help alleviate inmate overcrowding and lessen the need for a $44 million expansion of the jail.

In an interview with the Journal-World, Kittel expressed skepticism about several of the recommendations from a county-hired consultant who looked at ways to improve the efficiency of court proceedings, with a goal of reducing the number of days inmates are held in the jail.

“I don’t think any judge felt the model would be of any value,” Kittel said of a proposed categorization and priority trial system the consultant said could be effective in Douglas County.

Kittel also said she didn’t have a definitive opinion about a set of statistics that show felony cases are taking longer to be resolved in Douglas County than in many other counties in the state.

Statistics from the Kansas Judicial Branch showed that in fiscal year 2017, the number of felony cases that took more than 12 months to resolve stood at 12.8 percent. That was the highest percentage of any urban county in the state, and was the sixth highest of the state’s 31 judicial districts. The 2017 numbers were in contrast to 2014 totals when only 4.8 percent of felony cases in Douglas County took longer than 12 months to resolve.

Questions have been raised about whether the jail’s crowding issues could be alleviated if felony court cases were resolved more quickly. Kittel didn’t weigh in on that specific question, but rather reminded people that sometimes procedural delays can serve the cause of justice.

“Plea agreements take time,” she said. “Pushing cases out might not be a bad thing when the district attorney is looking to come up with a just resolution for a case.”

Other county officials also have struggled to explain why cases are taking longer and the impact it is having on the jail’s population. However, Douglas County Sheriff Ken McGovern has pointed to a change in state law that changed the definition of a speedy trial from 90 days to 150 days. The increases in jail population roughly coincide with that definition change.

Kittel, though, doesn’t think the change made much difference in District Court proceedings.

“Speaking for myself, I don’t feel like that had a huge impact in cases being (dragged) out,” she said. “A defendant can always waive the right to a speedy trial. When someone wants a trial, we set a trial.”

Crowding concerns

Kittel will not be taking a position on the upcoming sales tax election to fund the proposed jail expansion and mental health programs.

“It’s my opinion, it’s against judicial ethics to weigh in yea or nay,” she said. “It’s for the legislative branch to figure out.”

Nonetheless, Kittel does have concerns about conditions at the jail.

“As for concerns about how it affects the bench, I am concerned there is only one women’s pod available for all women,” she said. “You have women in jail for DUIs in the same pod as someone there for murder. I’m concerned about sending inmates to other counties and the difficulties that creates in moving cases along.”

To address the jail’s capacity and structural issues, the county has advanced a referendum asking voters to approve a half-cent sales tax that would fund a $44 million expansion of the county jail and an $11 million behavioral health campus.

Like other components of the county’s criminal justice system, the District Court of six state-funded District Court judges and two county-funded pro tem judges has come under scrutiny as the County Commission and those opposed to the jail expansion looked for explanations for the rapid increase in the county’s inmate population that started in 2014. The faith-based activist group Justice Matters, which opposes the jail expansion, maintains the court should be part of an outside consultant’s comprehensive review of the county’s entire criminal justice system.

A new judge

The scrutiny has brought change. The County Commission last summer approved Kittel’s request to fund a second pro tem judge with the goal of giving District Court judges more time to spend on criminal proceedings.

Pro tem judges have more limited docket authority than District Court judges and can’t be involved in felony criminal cases beyond first appearances at which defendants enter pleas on charges. However, Kittel said a shuffling of duties since Bethany Roberts joined the court in January as its second pro tem judge was having a positive affect on criminal court dockets.

“It has given Judges (Sally) Pokorny and (James) McCabria more time to focus on their felony dockets and time to expedite those,” she said.

That should allow the court to improve on what is already an improving record of disposing misdemeanor or felony cases through the dismissal of charges, diversions, plea agreements or trial decisions, Kittel said. While 2017 statistics showed some challenges of disposing of felony cases, when you look at statistics combine both felony and misdemeanor cases, the numbers look much better.

In 2017, 95.8 percent of 1,202 misdemeanor and felony criminal cases were disposed. That’s up from the 88 percent of the 1,217 misdemeanor or felony criminal cases filed in 2016.

Gun cases rising

McGovern and Douglas County District Attorney Charles Branson have said another reason for jail overcrowding was an increase in serious felony crime. Kittel said she agreed with that assessment, although she doesn’t have numbers to support the conclusion.

“Anecdotally, it seems like in my courtroom, we do have more serious charges involving firearms, which have their own implications as far as danger to the community,” Kittel said.

Cases involving serious charges are more complicated and take longer as defense attorneys attempt to spare defendants long prison sentences, Kittel said. Recent technological advancements have added to the delays.

“When I started as a defense attorney, there was no such thing as DNA evidence or dash-cam video,” she said. “And now we’re getting body cams. All that takes time to review and process. It can really slow the process down.”

District Court processes were the focus of a report consultant Allen Beck completed for the county. Released in January, it suggested a number of changes to increase the efficiency of criminal proceedings. Beck proposed the county jail provide judges a weekly census of the jail’s pretrial inmate population, broken down into categories reflecting the seriousness of charges inmates faced.

Beck also proposed the court look to prioritize cases involving incarcerated inmates and develop a process of scheduling trials that would seek to clear space in the jail by expediting cases that could be easily disposed.

Kittel said there was little of value in the proposals, noting the categorized and priority trial system Beck cites was used in Tarrant County, Texas. That county includes Fort Worth and is much different than Douglas County.

“On their (Tarrant County) website, the clearance rate they report is not significantly different than ours even with that system,” she said.

The District Court already gives priority to those cases involving incarcerated defendants, Kittel said. In addition, judges have weekly docket reviews with the goal of disposing cases.

Kittel said the court has embraced the pretrial release and post-conviction home-arrest programs. She and other judges developing a comfort level with pretrial release, which releases without bail inmates in the county jail arrested on misdemeanor or low-level felony charges who are found not to be a flight or public-safety risk.

“It’s nice the pretrial program has given us an option we didn’t have before,” she said. “Everyone here on the bench appreciates we have that option.”