“ Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say … so I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.”
pleas were negotiated, the defendant would proceed to the courtroom where the judge was located, and a different prosecutor would inform the judge of the plea agreement. Only in some of the cases where the plea involved a jail sentence did the prosecutor inform the defendant that he or she must sign up for a court-appointed lawyer. Unfortu- nately, not all defendants pleading to jail time were in- formed of the right to receive counsel. The site team witnessed a similar process in a northeastern Pennsylvania county. Defendants on the misdemeanor docket were told to go to a room in the basement before their cases were called. When observers went down to the basement to observe what was happening, they discovered a prosecutor in a conference room. The prosecutor was negotiating plea deals directly with defendants who would then go back up to the courtroom to plead guilty and be sentenced. In Kittitas County, Washington, the commissioner presiding over misdemeanor arraignments dealt directly with all de- fendants. Neither a prosecutor nor a defense attorney was present. The commissioner frequently advised defendants that they might be able to work something out directly with the prosecutor. The court’s practice was to provide the de- fendant with a form that had the phone number of the pros- ecutor at the top of the form, and information about contacting the contract defender at the bottom of the form. During the site team’s observations of the court, a number of defendants asked to speak with the prosecutor. There was no colloquy on waiver of counsel. Rather, the court warned defendants that “once you have an attorney, the prosecutor can’t talk to you directly.” In Colorado, the standard practice is for a misdemeanor de- fendant to speak directly with the prosecutor. Indeed, a statute specifically directs the prosecutor to speak directly with the defendant and come to a plea agreement. Colo. Rev. Stat. §16-7-301(4) states:
— Chief Justice Jean Hoefer Toal, Supreme Court of South Carolina.
In practice, most misdemeanor defendants in Colorado never see a public defender. The practice is not only ethi- cally problematic, it also violates the most recent pro- nouncement of the U.S. Supreme Court on the appointment of counsel, which provides that counsel must be appointed before or at the defendant’s first appearance before a judi- cial officer. 51 Recommendations — Absence of Counsel 1. The right to counsel should be observed in accordance with Argersinger v. Hamlin and Alabama v. Shelton. As the Supreme Court stated in Argersinger , “[u]nder the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the ac- cused is represented by counsel … and therefore know when to name a lawyer to represent the accused before the trial starts.” 52 Despite this pronouncement, more than 35 years later, the Court’s ruling is widely ignored. It is indefensible that, despite Gideon, Argersinger and Shelton, a significant percentage of defendants in misde- meanor courts do not have a lawyer represent them. The U.S. Supreme Court has time and again acknowledged that defense counsel is an integral part of the adversary system, and necessary to ensure accurate outcomes in court. The absence of counsel in misdemeanor cases fundamentally undermines the fairness and reliability of the criminal jus- tice system. 2. Waivers of counsel should be handled care- fully, with judges ensuring that the defen- dant fully understands his or her right to counsel, as well as the dangers of waiving counsel. “Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of
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In misdemeanors, petty offenses, or of- fenses under title 42, C.R.S., the prosecut- ing attorney is obligated to tell the defendant any offer that can be made based on the facts as known by the prose- cuting attorney at that time. The defendant and the prosecuting attorney may engage in further plea discussions about the case, but the defendant is under no obligation to talk to the prosecuting attorney. The pros- ecuting attorney shall advise the defendant that the defendant has the right to retain counsel or seek appointment of counsel. The application for appointment of coun- sel and the payment of the application fee shall be deferred until after the prosecut- ing attorney has spoken with the defendant as provided in this subsection (4). Upon completion of the discussions, the prose- cutor shall inform the court of whether a plea agreement has been reached[.]
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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