“The dirty little secret of the criminal justice system is that most eligible people do not get defenders.”
Site team observations in several states indicated that the percentage of misdemeanor defendants without counsel is greater than the BJS study suggested. 34 Time and time again site team observers watched individuals plead guilty with- out counsel. In North Dakota, the observer noted that counsel was not appointed or present at arraignment for misdemeanor cases, despite the fact that most defendants pled guilty at that hear- ing and many were sentenced to jail time. The judge never informed the defendants of their right to counsel. Instead, the judge asked each defendant, “Did you speak to a lawyer?” When the defendant indicated that he or she did not, the judge asked, “Are you going to?” The defendants universally answered in the negative, and the judge pro- ceeded to accept the plea and sentence the defendant. In numerous other jurisdictions, as in North Dakota, site teams observed judges who failed to inform defendants of their right to have counsel appointed if they could not afford to hire counsel. In fact, frequently the disregard for the Supreme Court’s right to counsel rulings was blatant. For example, at a meeting of the State Bar, the Chief Justice of the South Carolina Supreme Court publicly stated that she instructed misdemeanor court judges to ignore a Supreme Court Sixth Amendment ruling:
— Edward Monahan, Deputy Public Advocate, Kentucky Department of Public Advocacy. 38
Shelton . Many district courts throughout Michigan simply do not offer counsel in misdemeanor cases at all, while others employ various ways to avoid their constitutional obligation to provide lawyers in mis- demeanor cases.” 39 Uninformed Waiver of Counsel How is it that so many people go without counsel in mis- demeanor court? As noted above, in some jurisdictions, the defendant’s constitutional rights are simply disregarded and never acknowledged. More often, however, the constitu- tional rights are acknowledged, but hastily disposed of with a “waiver.” Waivers, even of constitutional rights, are not illegal. The U.S. Supreme Court has concluded that an adult defendant has the right to waive counsel, but first the judge must: (1) inform the defendant of his or her right to appointed coun- sel; 40 and (2) make the defendant “aware of the dangers and disadvantages of self-representation.” 41 The inquiry by the judge should be thorough. 42 In other words, the judge must confirm that the defendant voluntarily, knowingly, and in- telligently decided against using a lawyer and in favor of self-representation. Similarly, national performance stan- dards provide that indigent defendants should not be called upon to plead guilty until counsel has been appointed or properly waived. 43 In a number of jurisdictions, site teams observed judges ig- noring the rules regarding waiver. Time after time, courts made clear to defendants that they must waive counsel to proceed. There were no inquiries into the education or so- phistication of the defendants and very few efforts to warn defendants regarding the dangers of self-representation or the kind of assistance counsel could provide. Often the waiver was incorporated into the first part of the proceed- ing and was presented as a rhetorical, compound question directed at whether the defendant wanted to dispose of the case quickly. The judge asked the defendant something like, “You are waiving counsel and wish to proceed now, right?” and the defendant responded, “Yes.” In Maricopa County, Arizona, the site team observed a judge practically instructing defendants to waive their right to counsel. For example, the judge said the following:
15
Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we ad- hered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law of- fices to take these cases in every magis- trate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation. 35
Documentation and reports from across the country con- firm the frequency with which the right to counsel is com- pletely disregarded in misdemeanor courts:
TEXAS: “Three-quarters of Texas counties appoint counsel in fewer than 20 percent of jailable misde- meanor cases, with the majority of those counties ap- pointing counsel in fewer than 10 percent of cases. The vast majority of jailable misdemeanor cases in Texas are resolved by uncounseled guilty pleas.” 36 CALIFORNIA: In Riverside County, California, more than 12,000 people pled guilty to misdemeanor offenses without a lawyer in a single year. 37 MICHIGAN: “People of insufficient means in Michigan are routinely processed through the crimi- nal justice system without ever having spoken to an attorney in direct violation of both Argersinger and
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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