Editor’s note: This is the third column in a series about the criminal justice system in Warren County. You can read the first and second columns on .
WARRENTON — Brittany Nipper was looking forward to her day in court. Finally, on May 20, her five-year ordeal would come to an end.
Or so she thought.
In January 2018, Nipper was charged with third-degree domestic violence against her ex-boyfriend, stemming from an incident in September 2017. She was charged with choking and biting him. Nipper maintains her innocence. Other than traffic tickets, she has no criminal record.
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Three months ago, on May 20, she drove to court — 102 miles round-trip from University City, where she now lives. Her attorney, Matthew Mueller, showed up that day, too, ready to go to trial.
But there was no trial. In fact, Warren County Circuit Court Judge Jason Lamb had canceled the jury the night before. The highest priority case scheduled for trial that day had been postponed. It’s not unusual for judges to schedule more than one trial on the same day, just in case one has to be delayed for a variety of reasons.
In Warren County, though, there is such a backlog of cases that more often than not, several cases are scheduled for the same day.
On this day, there were seven cases scheduled for trial. None of them took place.
Nipper was dumbfounded.
“They just canceled court,†she says. “But if I hadn’t shown up, I’d get a warrant out for my arrest. That’s not fair.â€
That’s the point Mueller made in a motion he filed in court the next day, seeking to disqualify Lamb from the case. Mueller argued that he wasn’t involved in the decision to cancel the trial and that he wasn’t given a chance to respond — in fact, he wasn’t even notified in advance.
It’s not the first time Mueller has challenged a judge and tried to shake up the status quo. In 2019, he successfully argued two cases before the Missouri Supreme Court that upended the state’s long practice of jailing indigent defendants who couldn’t afford to pay their “board bills,†for previous stays in the county jail.
In comparison, that case was relatively straightforward. Rural Missouri judges were operating de facto debtors’ prisons in opposition to state law, the court ruled unanimously.
The issue in Warren County is more complex. Everybody, including Lamb, agrees there is a problem. There are several causes: too many cases; a prosecutor with unflinching standards when it comes to plea bargaining; a judge who has been slow to clear his clogged docket; and even more backups because defense attorneys are pushing for speedy trials that can’t take place fast enough.
“We’ve got to break the system in order to fix it,†says Chris Lozano, another contracted public defender.
That system right now is almost farcical.
The judge, for example, chided Mueller for believing that any of the scheduled cases would go to trial on May 20 — as though it’s understood that trial dates are mirages in Warren County.
“There was no reason to inconvenience any counsel, in any of the other remaining cases on the May 20, 2023 docket,†Lamb wrote in an order, “or the public citizens of the jury panel by pretending that a case would go to trial on May 20, 2023.â€
It’s an astonishing statement, Mueller would point out in court a month later. In June, Mueller and Nipper appeared before Circuit Court Judge Michael Wright so he could determine whether there was legal cause to remove Lamb from the case.
“Trial dates don’t mean anything,†by Lamb’s own admission, Mueller pointed out.
Wright denied the request for a new judge.
So there Mueller and Nipper were again, on Aug. 8, in Lamb’s courtroom, for a hearing setting a new trial date. This time it was set for September, on another day with multiple trial dates, where “pretending†that Nipper may get her day in court is a fool’s errand.
‘There’s almost no way out’
The good news for Nipper is that she’s not incarcerated. She posted bail after she was arrested in April 2018. But having a felony charge hang over your head for five years is devastating, particularly if you live at or near the poverty line.
The felony charge led to the loss of her Section 8 housing in Warren County. She lived with her mom for a while, then a cousin. She met a man, got married and had a baby. All the while, she had to drive from University City to Warrenton for hearings that might or might not be canceled — and under the threat of arrest if she didn’t show up.
“It hinders me from getting any kind of job,†she says. “I’m looked at like I beat people up, when that’s not the case at all ... I have to apply for food stamps just to bring food in the house for the kids.â€
On her most recent court date, Nipper was in a packed room with dozens of other people wrestling with years-old cases.
One defense attorney told the judge he needed a delay because he was still waiting for discovery from Prosecuting Attorney Kelly King. Another sought an “open plea†from Lamb because King’s plea bargain offers in the case were unacceptable. In an open plea, a defendant trusts that the judge will offer a more reasonable sentence than what the prosecutor is offering. At the last minute, King changed her offer and that case was settled and cleared off the docket.
One down, hundreds to go.
“They keep jamming new cases into the system,†Lozano says. “There’s almost no way out.â€
When it was Nipper’s turn that day, Lamb asked whether she had a “Frye hearing†yet. That’s a process in which a judge inquires whether the defendant has been offered a plea bargain, and whether the person’s lawyer has communicated the details of that plea bargain. The name stems from that was ruled on by the U.S. Supreme Court in 2012.
Yes, Mueller told Lamb. In fact, Nipper has had two Frye hearings already, going back to when her case was first set for trial in 2018 and then after a pandemic-induced court shutdown.
The problem isn’t that she hasn’t been offered a plea bargain, or that Mueller hasn’t communicated the offer. It’s that Mueller and Nipper believe King has a bad case and won’t either drop it or make the sort of offer that would clear the case from the docket. Nipper intends to exercise her right to a trial by jury and make King prove her case.
Even if King believes she has a winning case, what justice is there in waiting more than five years to punish somebody in a domestic violence case? Is that really accountability for victims?
Warren County’s issues are symbolic of problems in courts nationwide, in which the Sixth Amendment right to a jury trial has been all but abolished. Among the causes is something called “the trial penalty,†a practice by which prosecutors use overcharging to coerce guilty pleas, and, in cases that go to trial, seek severe sentences as a punishment for not accepting plea bargains.
Seeking a speedy trial is supposed to be a remedy. But if the docket is clogged up and trials can’t be scheduled, that right basically goes out the window.
The process is so abused these days that few cases ever make it to trial, according to a bipartisan coalition known as . There is no incentive to exercise one of America’s oldest rights.
Among the solutions advocated by criminal justice advocates are two that work together. First, there should be a cap between the sentences offered in plea bargains and those available if a case goes to trial, so that prosecutors aren’t allowed to use overcharged offers to coerce guilty pleas. Second, there should be more transparency in the plea bargain process so everybody knows what a prosecutor is or isn’t offering, including the judge and the general public.
“One way to mitigate against coercion is to ensure that plea offers are recorded and placed on the record,†says Marc Levin, the chief policy counsel for the Council on Criminal Justice. “With this reform, judges will be empowered to demand that prosecutors explain what has changed so much that a harsher sentence than what was offered is justified after a conviction at trial.â€
First, though, a defendant has to get to trial.
In Warren County, the presiding judge says it’s a mistake to pretend that will happen.