fendants who have hired counsel are more deserving of a break. I think there is often a presumption that PD clients are lazy, good-for-nothings whose futures are irrelevant to them.
“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.”
A Colorado lawyer, who was a defender and is now in pri- vate practice, responded in the survey: “Often [you] get bet- ter deals on private cases [because] prosecutors view clients in a different light. Also, [the] PD does not generally have resources for investigation and expert assistance as de- scribed above, so [they] cannot present as persuasive a ne- gotiation to [the] prosecutor.”
— An Oklahoma defender.
Judges Face Discipline for Not Honoring Right to Counsel
dent’s failure to adequately perform that duty calls into question the integrity of her office.” 224
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Judges can be disciplined for failing to protect the right to counsel. Although it is not clear how often this occurs, be- cause frequently the records are not public, the examples below bring into stark relief the level of abuse that can occur in misdemeanor courtrooms. In recent years, a number of judges have been disci- plined in Washington State for not meeting their obliga- tions regarding counsel for the indigent. In one case suspending a municipal court judge, the Washington Supreme Court wrote:
In 2006, following a new proceeding in the Commission, the state Supreme Court suspended the judge for 30 days. 225 Among the problems identified in the new complaint, the judge, in many cases, advised criminal defendants of their right to counsel after they entered a plea. In every case, there was a waiver of counsel in the file. The commission pointed out that the intent to plead was entered before a waiver of attorney had been obtained. In addition, the judge failed to reiterate adequately to defendants at probation re- view hearings that they have a right to counsel and failed adequately to obtain waivers of counsel. In 2006, an investigative report by the New York Times found that 1,140 of the district justices in New York State “received some sort of reprimand over the last three decades — an average of about 40 a year, either privately warned, publicly rebuked, or removed” by the Commission on Judicial Conduct. 226 Recommendations — Judicial Conduct in Misdemeanor Cases 1. All judges handling misdemeanor cases should receive extensive training on the im- portance of criminal charges and the direct and collateral impact of pleading guilty on the defendant. Judges should receive regular training on the effects of criminal judgments on a defendant. Not only would such training ensure that proper respect for the proceedings is maintained, regardless of the level of charge faced by the defendant, but it would also ensure that judges can verify that defendants have received sufficient information re- garding the consequences of a conviction before agreeing to plead guilty. Judges should be equally respectful of all defendants, re- gardless of their ability to pay for counsel, and of all attor- neys, regardless of whether they represent the people or the
People appearing pro se and without legal training are the ones least able to defend themselves against rude, intimi- dating, or incompetent judges. The con- duct here denigrates the public view of municipal courts as places of justice. 220
The same judge was subsequently charged with miscon- duct, which again included consistently failing to advise defendants that they have a right to counsel, requiring de- fendants who pleaded not guilty to waive their right to counsel and to a jury trial, and failing to appoint counsel. The judge stipulated to his ineligibility to hold office. 221 In 2004, the Washington State Commission on Judicial Conduct censured a district court judge for failing to ob- serve defendants’ fundamental due process rights. 222 After a warning in 2002, the judge had continued to advise de- fendants improperly prior to requiring them to enter a plea. She “routinely failed to advise unrepresented defendants of various rights, including but not limited to: (i) the per- ils of proceeding without counsel, (ii) the right to remain silent, and that anything the accused says may be used against him or her.” 223 The Commission noted, “Because the practices implicate the constitutional rights of the defendants involved, the na- ture of the violations cannot be overstated.” The Commis- sion added: “Protecting the rights of accused individuals is one of the highest duties of any judicial officer. Respon-
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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