Defenders should be permitted the time and resources nec- essary to gather information relevant to bail and bond de- termination, and present the information the court. Counsel should insist that the court review whether probable cause exists to believe that the defendant committed the alleged crime. If probable cause does not exist, the defendant should be released. If, after learning of bail and bond, a defendant says that he or she would like to plead guilty, the defendant should be carefully questioned regarding motivations. Judges should refuse to accept pleas if, after colloquy, it appears the de- fendant is pleading guilty for expediency and without a full understanding of the potential consequences of the plea. An example of a thoughtful approach to the court’s bail de- cision process is the Washington State court rule on re- lease. 183 The rule has a presumption of release on personal recognizance. “If the court determines that the accused is not likely to appear if released on personal recognizance, the court shall impose the least restrictive of” a number of conditions including restrictions on travel that the court finds are likely to ensure appearance. 184 3. Prosecutors should not utilize time limits on plea bargains to coerce early pleas, particularly when the time limit does not permit defense counsel to fully assess the appropriateness of the plea and advise the client. Often, particularly in misdemeanor court, a prosecutor ar- rives at a hearing and says to the defense attorney some- thing like “If your client pleads today, I will recommend time served, or probation, but she has to plead today.” The defense attorney has a matter of hours, or sometimes min- utes, to help the defendant make a decision. These time- limited plea offers serve only to coerce defendants to act quickly, regardless of whether he or she is fully informed. In essence, these plea offers present defense attorneys with a Hobson’s choice. They can recommend against the plea bargain because they cannot fully assess its appropriateness for the client in the time allotted for decision-making, in which case they run the risk of having lost a significant op- portunity for a reduced sentence for the client. Alterna- tively, they can accept the plea without having done the necessary investigation, and run the risk that they have en- couraged a client to plead guilty who may have had a suc- cessful defense to the charge. Moreover, without time to assess the possible collateral consequences, the attorney cannot advise the client on the consequences of the choice and may be foregoing an opportunity to negotiate a plea that would have fewer consequences. Arguably, the defense attorney may provide ineffective assistance regardless of the choice he or she makes. Additionally, foregoing an investigation in a case where one might prove useful is a violation of national performance standards, as well as the performance standards of many states. 185 The American Bar Association Criminal Justice
Section’s Standards on the Defense Function require defense counsel to “conduct a prompt investigation of the circum- stances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.” 186 The standard specifically states that the duty to investigate exists even if the defendant states that he or she is guilty or expresses a desire to plead guilty. 187 The only appropriate solution is to remove the necessity of defense counsel making this Hobson’s choice. Prosecutor- ial offices should require early plea offers to be valid for a period of days to permit the defense attorney to comply with his or her obligation to fully assess the plea and make a recommendation to the client. 188 Moreover, as the practice frequently places defenders in the position of having to violate their performance obligations, the use of time-limited plea offers should not be counte- nanced by judges or court administrators. Too often, judges and administrators are tacitly complicit, if not actively en- couraging, in the use of coercive tactics, like time-limited plea offers, to resolve cases because it helps move dockets. Such complicity has led to the overall prioritization of ex- pediency above compliance with ethical and performance standards, as well as justice. This must be reversed, and prosecutors who do not engaged in one time only pleas should be supported. Once freed of the pressure of a time-limited plea, defend- ers can seek, when advisable, to convince defendants to per- mit them the time to adequately research, investigate and assess the case, even if it means that they have to return to court again. Professor Zeidman observed at the New York conference that there are “very few clients who say ‘ab- solutely not’ when you ask for one adjournment.” Professor Babe Howell agreed, stating “I can convince just about any- one to give me a change to fight for [his or her] case.” Con- vincing defendants to allow defenders to appropriately investigate the case is significantly easier when the defen- dants know that, if the defenders assessment of the case turns out poorly, the plea deal will still be available. 4. When setting the caseload standards for a jurisdiction, particular attention should be paid to the collateral consequences of con- victions in that jurisdiction and the time needed by the defender to research, under- stand, and advise clients with regard to col- lateral consequences. While caseloads should never exceed the national stan- dards, there are a variety of jurisdiction-specific reasons that caseloads should, in fact, be lower. If, for example, the defender office serves defendants in two courthouses sep- arated by 100 miles, the defender caseloads should be low- ered to account for the travel time required. Similarly, if the scheme of collateral consequences is particularly compli- cated in a jurisdiction, the defender caseload should be low- ered to account for the amount of time a defense attorney will have to spend researching the potential effects of a con-
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Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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