4. Ethical prohibitions on prosecutors speaking with defendants should be strictly enforced. The American Bar Association House of Delegates passed a resolution in August 2005, which addressed the ethical obligations of judges and lawyers to meet the constitutional guarantee of effective assistance of coun- sel. The resolution states, “Judges should, consistent with state and territorial rules and cannons of profes- sional and judicial ethics: … (c) take appropriate action with regard to prosecutors who seek to obtain counsel and guilty pleas from unrepresented accused persons, or who otherwise give legal advice to such persons, other than the advice to secure counsel.” 61 In criminal cases, given that all defendants who cannot afford counsel are entitled to appointed counsel, it should be assumed that each defendant is or will be rep- resented by defense counsel until and unless a waiver of counsel, with a full and appropriate colloquy, is processed by the court. Until that time, no defendant should be encouraged or required to talk to a prosecutor. Indeed, prosecutors should be strictly forbidden from communicating directly with defendants, and breaches of this rule should be addressed through the regular bar disciplinary authority.
going to jail or prison, and so that he is treated fairly by the prosecution.” 53 A judge should “never attempt to en- courage persons to waive their right to counsel, and ac- cept no such waivers unless they are knowing, voluntary and intelligent, and on the record[.]” 54 The dangers of waiving the right to counsel must be fully explained to each defendant, before the waiver of counsel is permit- ted, and the judge must question the defendant fully to ensure that he or she understands the right to counsel and the implications of a waiver. A waiver form is not a substitute for a colloquy. If a waiver form is used, the colloquy must still ensure that the defendant fully understands the right to counsel and the dangers of waiving the right. The form should serve merely to reinforce the important conversation that the judge has with the defendant. Additionally, a defendant should be encouraged to con- sult with counsel before effectuating a waiver. Only by consulting with a defense attorney can a defendant be fully confident that waiver is appropriate in his or her case. 3. Appointment of counsel should be auto- matic for any defendant who appears without counsel until it is demonstrated through a fair and impartial eligibility screening process that the defendant has the financial means to hire an attorney to represent him or her in the matter charged. Counsel must be appointed to any defendant who is fi- nancially unable to hire counsel. 55 In other words, if a person cannot afford to hire an attorney without sub- stantial financial hardship, counsel should be ap- pointed. 56 Substantial hardship should be determined by looking at the typical cost of hiring counsel for the type of charge the defendant is facing. Moreover, the indi- vidual’s ability to pay must not only assess his or her in- come and available resources, but also his or her expenses, including family support obligations and debts. 57 The assessment of whether an individual can afford to hire counsel should be made through a formalized process that ensures uniformity and avoids conflicts of interest. 58 Jurisdictions should “[e]rr on the side of pro- viding counsel, and avoid overly stringent screening cri- teria that chill the exercise of the right to counsel.” 59 A default in favor of the appointment of counsel encour- ages authorities to undertake screening quickly and effi- ciently. Indeed, if attorneys are provided to all defendants who appear without counsel at first appear- ance, screening should be completed in advance of any subsequent hearing, so that the defendant is never forced to appear without counsel. Additionally, prosecutors should be excluded from participating in the eligibility determination process. 60
18
Deterrents to Asking For Counsel
Even when the judge informs the defendant that he or she has a right to counsel, frequently other factors, such as delay or the cost of court processes, compel the de- fendant to waive counsel.
Delay Judges often make it clear to defendants that there are no defense lawyers present in the courtroom to assist at that time, but, if they want the case to proceed that day, they can proceed without counsel. From observation vis- its across the country, site team members reported many judges saying to defendants, “You can wait for counsel, or you can proceed now without counsel.” For defendants, delay can cause significant problems. There is the ongoing burden of having a criminal charge pending. There is also the burden of multiple court dates. Often, this obligation requires a person not only to miss several days of work, but also to find alternate child care. These inconveniences can significantly strain a defen- dant’s resources, particularly someone who is indigent. The threat of delay is particularly acute for those defen- dants who are in custody. It is a frequent misunder- standing that people accused of misdemeanors,
Minor Crimes, Massive Waste
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