Courts: Problem of Quality

Is he an ambassador? Is he a Cabinet member? Though the title has an august ring, a U.S. commissioner is not nearly so easy to define. In Mississippi, for example, a suddenly famous U.S. commissioner has turned out to be a middle-aged spinster totally devoid of legal training, but with the power to release 19 men accused of complicity in the murder of three civil rights workers, on the ground that one accused’s confession was “hearsay” (TIME, Dec. 18).

Commissioner Esther Carter’s ignorance is in the best (or worst) tradition of an ancient office that now requires no special qualifications whatever. In 1793, Congress began appointing “discreet persons, learned in the law” to accept bail in federal cases. The qualifications died in 1896, when Congress handed over the appointments to U.S. district judges. Today’s 700 U.S. commissioners may be butchers, bakers or candlestick makers. Yet they function as the federal judiciary’s committing magistrates, hold preliminary hearings and determine whether accused persons shall be released or held for trial.

Limited Power. The key test for holding a person is “probable cause”—a fluid concept that Chief Justice John Marshall defined in the 1807 Aaron Burr treason case as “evidence furnishing good reason to believe that the crime alleged has been committed by the person charged with committing it.” Such evidence may be no more than an FBI agent’s testimony, or the arrest warrant signed by the commissioner himself. The evidence may be inadmissible at the accused’s eventual trial. It may be insufficient for indictment by a federal grand jury, which is the sole indictor under federal law. All a U.S. commissioner really determines is whether it seems more prudent to hold a suspect until the grand jury considers the case than to free him.

If the Government has trouble finding evidence, commissioners may grant continuances until the case is better prepared. But they have no power to determine guilt or innocence. According to the Justice Department, Miss Carter was clearly out of line when, on the whispered advice of a local district judge’s law clerk, she invoked the trial standard of hearsay evidence. But except in big cities, where most commissioners are seasoned lawyers, such ignorance is probably widespread. According to a recent study, the commissioners of one North Carolina federal district have meted out fines, put defendants on probation and even tried cases for offenses over which they had no jurisdiction whatever. None of the commissioners in question is a lawyer.

Chaotic Mess. One probable explanation for the poor quality of commissioners is money: they are paid entirely on a fee-basis ($6 for signing a search warrant, for example), with an annual maximum of $10,500. Only 25 commissioners hit that level last year; more typically, Miss Carter earned $904. Another problem is that commissioners, who serve four-year terms, are under the thumb of district judges, who may fire them without showing cause. As a result, quality varies widely.

“It’s not a system at all,” says Warren Olney III, director of the Administrative Office of U.S. Courts. “It’s a chaotic mess.” Olney points significantly at Detroit, which has not had a U.S. commissioner for 16 years. Detroit’s federal judges serve as committing magistrates themselves. “You don’t find bail-bond brokers hanging around the courthouse in Detroit,” says Olney, “which raises the suspicion that maybe one of the commissioners’ first functions is to keep bail bondsmen in business.” Olney concludes: “Detroit is better off without a U.S. commissioner.”