You are charged with reckless driving. So, I guess basically before we talk about it, let me do a couple preliminaries. … I want you to waive your right to an attor- ney. You have a right to have an attorney, but I’m not going to give you the public defender. You would have to go and hire one and I don’t think you’re going to do that. I think you and I are going to talk about this right here, right now, right?
Eligibility Limitations for Counsel In some jurisdictions, counsel is not appointed due to re- strictive financial eligibility guidelines. In Gideon, the Supreme Court provided that counsel should be appointed for those “financially unable to obtain counsel,” or “too poor to hire a lawyer.” 46 Problematically, the Supreme Court did not establish a threshold or process for determin- ing that financial eligibility. As a result, practices and policies for determining eligibil- ity for public defense services differ widely from state to state. Indeed, frequently these practices and policies differ from county to county, and courtroom to courtroom. 47 De- fenders across the country noted that many defendants who are financially incapable of retaining counsel are denied ap- pointed counsel. For example, in Lower Kittitas, Washington, approximately 16 percent of people who apply for defenders are denied. During the observation visit, the commissioner suggested to defendants that they might want to talk to the prosecutor be- fore getting a lawyer. The commissioner made no inquiry into whether the defendant could afford to retain counsel. As a result, defendants who proceed without counsel may be doing so despite being unable to hire an attorney. Conferring Directly with Prosecutors Often defendants are encouraged, or even required, to dis- cuss their cases directly with prosecutors. Ethically, this is problematic, particularly if the prosecutor is aware that the waiver of counsel, if there was one, was not sufficiently in- formed and voluntary. Ethics rules generally prohibit a lawyer from giving ad- vice to an unrepresented person whose interests may be adverse. 48 In fact, the model ethical rules specifically re- quire prosecutors to “make reasonable efforts to assure that the accused has been advised of the right to, and the pro- cedure for obtaining, counsel and has been given reason- able opportunity to obtain counsel.” 49 Further, the rules forbid a prosecutor from seeking to obtain waivers of im- portant pretrial rights from unrepresented accused per- sons. 50 Despite these clear prohibitions, site visits and research demonstrated that it is common for prosecutors to confer directly with defendants, frequently requesting and processing the defendants’ waiver of counsel, and then negotiating guilty pleas. In Hays County, Texas, for example, court staff directed misdemeanor defendants to confer with the prosecutor about a possible plea before the defendants had a meaning- ful opportunity to request the appointment of counsel. In fact, the site team observed that no defense attorney was present in the courtroom, nor was a judge. Two prosecutors sat at counsel table — one at each table. They called a de- fendant’s name and then negotiated a plea directly with the defendant. The judge waited in another courtroom. After
The defendant then signed a form waiving his right to counsel.
As in Maricopa County, the right to counsel and the warn- ings regarding waiver of counsel are frequently enumer- ated in a written form. In many instances, the court handed the form to a defendant with no explanation and said, “Sign here,” and the defendant signed. The court did not conduct a thorough inquiry of the defendant as to his or her ability to read or whether the defendant understood what he or she signed.
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“The defendant is usually told he must first talk to a prosecutor about his case and get a plea offer before he is allowed to have a lawyer appointed.”
— A Tennessee public defender. 44
In Tampa, Florida, when a member of the site team entered the misdemeanor courtroom, a court official immediately presented her with a form that combined a waiver of coun- sel with a plea of guilty. She was told to take a seat and fill out the form. Among other things, the form asked her to attest that, “I am of sound mind and body and hereby freely and voluntarily waive my right to an attorney in the case(s) above in accordance with Florida Rules of Criminal Pro- cedure 3.160(e).” Although the form described at the out- set the dangers of waiving counsel, at the point of asking for waiver of the rights under the rule, the form neither quoted the language of the rule nor did it explain that the rule describes the rights of all defendants to court-ap- pointed counsel. 45
Minor Crimes, Massive Waste
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