particularly non-violent misdemeanors, do not remain in jail during their case. In fact, people charged with mis- demeanors frequently are detained pending trial, partic- ularly if they are indigent. In these situations, further delaying adjudication to wait for counsel means addi- tional time in jail. Sometimes, defendants spend more time in jail waiting for their day in court than they would if they pled guilty and were sentenced.
Application fees have a deterrent effect on the exercise of a defendant’s right to counsel. This deterrent effect can be stronger in misdemeanor cases where the defen- dant may erroneously view a conviction as minor or unimportant. “The potential chilling effect of application fees is particularly troubling given recent reports of judges accepting and even encouraging invalid waivers of counsel and guilty pleas from unrepresented indigent defendants charged with misdemeanors, in efforts to move cases through their overburdened dockets as quickly as possible.” 66 When they learn of the fee, de- fendants frequently choose to waive the right to counsel to avoid the charge. Recommendations — Deterrents To Asking for Counsel 1. Defense counsel should be available to rep- resent an accused person at the first ap- pearance. The Supreme Court frequently has acknowledged that most defendants are not capable of effectively representing them- selves in criminal judicial proceedings. As the Court stated in Powell v. Alabama, “[t]he right to be heard would be, in many cases, of little avail if we did not comprehend the right to be heard by counsel. Even the intelligent and edu- cated layman has small and sometimes no skill in the sci- ence of law.” 67 The simplest, most effective way to ensure that a defendant understands the charge(s) against him or her, receives a full explanation of the court’s procedures, makes informed decisions regarding whether to invoke or waive critical rights, and does not sit in jail unnecessarily on a minor charge is to provide representation by a defense at- torney at the defendant’s first appearance. The first appearance is critical, particularly in misdemeanor cases. Not only are bail determinations made, but because so many misdemeanor cases are resolved at first appear- ance, pleas are entered and sentences imposed. Proceeding without counsel can have a significant prejudicial effect on the defendant. The defendant may not understand the effect of speaking to the judicial officer and may incriminate him- self. He may be forced to make difficult assessments about what he should and should not tell the judicial officer. For example, imagine the defendant is a domestic worker who is paid in cash by her employer. If the judge asks the de- fendant whether she is employed — the defendant has to decide, without counsel, whether to say yes or just not reply. She likely will worry that saying yes will result in her em- ployer being reported to the Internal Revenue Service, and that she will lose her job if that happens. Similarly, a de- fendant asked about family in the area may be hesitant to answer if the family members are in the country illegally. When a defendant stands silent with regard to these major factors in bail determination, he or she is often jailed pend- ing trial, which gives rise to horror stories of persons in jail,
A couple of recent cases, documented by law professors, aptly demonstrate these problems: 62
GEORGIA: Tony Humphries was charged with jumping a subway turnstile in Atlanta. He sat in jail for 54 days before a lawyer was appointed, far longer than the sentence he would have received if convicted. His incarceration cost the taxpayers $2330. MISSISSIPPI: A woman accused of a shoplifting offense spent a year in jail, before any trial, with- out even speaking to her court appointed lawyer.
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In Allegheny County, Pennsylvania, cases are assigned to an attorney a day or two before the pretrial confer- ence, which is held six weeks after the “formal arraign- ment.” During that six-week period, there is no actual representation. Up to 10 weeks can pass before an attor- ney actually works on the case. During the site visit, one of the senior managers in the defender office described this as “the chief weakness” of the office. Another attor- ney noted that the court rules require motions to be filed within 30 days of the formal arraignment, which is im- possible because the lawyer is not assigned to the case at that point. Application Fees To receive public defense services in some jurisdic- tions, a defendant must submit an application and pay an application fee. 63 In the early 1990s, the use of ap- plication fees for those who sought appointed counsel proliferated. In South Carolina, for example, an indigent defendant must pay a $40 fee to be eligible for a public defender. 64 Although authorized, waiver of the fee does not occur often. A defender from South Carolina, in response to the survey, reported that the fee “keeps many misde- meanor level clients from seeking … services.” In Washington, one attorney stated that about half of her clients are college students. They are required to pay a fee of $200, which many cannot afford. New Jersey al- lows application fees of up to $200, and some munici- palities charge the maximum amount. 65
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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