Judicial Conduct in Misdemeanor Courtrooms
In dealing with large calendars and pro se defendants inexperienced with the law and legal process, it’s easy for judges to let their frustration get the best of them and look for ways to move the calendar along. There has been more than one documented case in Washington where judges have not fully advised defendants of their right to counsel and to trial by jury or have explicitly encouraged de- fendants to waive those rights in the name of efficiency.
Judges set the tone for what happens in the courtroom. While not true of all judges, often in misdemeanor courts, judges emphasize expediency over justice, to the detriment of defendants and their attorneys. Some courts advise de- fendants of their right to counsel, but do not provide coun- sel at initial appearances. Others will encourage defendants to talk with the prosecutor before obtaining a lawyer. Still others permit counsel, but push docket movement so much that defendants and their attorneys feel extraordinary pres- sure to enter guilty pleas. One judge observed for this report told defendants that, de- spite defendants’ right to counsel, he would not appoint a lawyer. Another judge, in the city of Phoenix, noted that by convincing people to proceed without counsel, he can deal with a lot of cases faster. He observed that without lawyers on either side, “[o]n a good day, I can take 35 suspended li- cense pleas.” One veteran Massachusetts lawyer asserted that the great- est challenge to the misdemeanor practice is “[p]ressure from courts to turn cases over quickly instead of preparing the defense of them.” Similarly, an Oklahoma lawyer, re- sponding to a question about recommendations for change, wrote, “Teach judges that just because they are misde- meanors doesn’t mean they are not important. Judges here convince defendants every day to go pro se and plead just to speed up the process without regard for the consequences to these peoples’ lives.”
In 2006, the New York Times did an extensive investigation of the town and village courts in New York State, which handled more than 300,000 low-level criminal matters an- nually. Nearly three-fourths of the judges in those courts were not lawyers. The investigation “found overwhelming evidence that decade after decade and up to this day, peo- ple have often been denied fundamental legal rights. De- fendants have been jailed illegally. Others have been subjected to racial and sexual bigotry so explicit it seems to come from some other place and time. People have been denied the right to a trial, an impartial judge, and the pre- sumption of innocence.” 219
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Disparate Treatment Of Indigent Defendants
In many court systems, defendants represented by public defense attorneys are treated more harshly than defendants who have retained private counsel. In fact, more than two- thirds of the survey respondents said that both the judges and the prosecutors treat defenders and their clients differ- ently than they treat the clients of retained attorneys.
One Oregon defender observed:
Many courts treat misdemeanors like nuisances and fail to appreciate the com- plexity of the cases and the fact that both the public defender and the client are human beings, deserving of respect. Comments from the bench (on the record) make it clear that some judges think all of these clients should just plead out and do not deserve a trial.
One of the Tennessee respondents to the survey explained:
Courts hear private attorneys first and give them more leeway in continuances. Prosecutors give better offers to private attorneys. There is definitely favoritism towards college students and affluent de- fendants — there is a HUGE disparity in offers between clients who have the means to make bond and those who do not. Many of the judges treat the pri- vately represented clients with more re- spect. Judges tend to sentence clients who are on bond to probation and clients who have not been able to make bond to more jail time.
In the ABA hearings, then chief criminal Judge Michael Spearman from King County, Washington, said:
“[I]t’s easy for judges to let their frustration get the best of them and look for ways to move the calendar along.”
Another Tennessee respondent confirmed:
Often times, judges will take retained counsel cases earlier. … Judges and DAs are often more respectful of private coun- sel, and more willing to believe that de-
— Judge Michael Spearman, King County, Washington.
Minor Crimes, Massive Waste
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