Monday, May 15, 2017

At Your Own Risk

With Jefferson Beauregard Sessions demanding the return of mandatory minimums and harsher criminal penalties, I see a return of Dynasty also coming to Television, so welcome back 80's!  It explains Trump as that was his heyday.

But with this will of course mean the revolving door to Courts will be in full swing as well. Not that they have stopped but the reality is that indigent defense is already bursting at the seams and Public Defenders across the country are beginning for resources in which to adequately defend their clients.

The reality is that while we act tough on crime we forget the end result, overstuffed prisons, costly burdens to communities due to legal costs, abusive Prosecutors and Judges and many falsely and unjustly accused. 

In other words more of the same only we are doubling down on a failed program. But I think that is the entire point of the Trump Administration, to fail dramatically in order to have some type of bizarre anarchy.

Entering the Criminal Justice System on Their Own

Every year, thousands waive their right to an attorney and represent themselves in court
Steven Hale
Nashville Scene
May 11, 2017 5 AM

On a Monday morning, Courtroom 1A, tucked in the corner of the first floor of the Justice A.A. Birch Building downtown, is like the DMV but with higher stakes.

Some 40 people — white, black and brown — fill the pews that sit in a gallery facing the judge’s bench. As they walk in to find a seat, men tuck T-shirts and button-downs into their pants, hastily complying with the court’s dress code. A mix of confusion, irritation and boredom is in the stale air, and the people who know how this all works — the prosecutor and courthouse staff working through files, and the judge, who makes brief appearances separated by long intermissions — are in no particular hurry to clear things up. From time to time, one person leans over to another with a question about what they should do or to whom they can speak.

The wooden pews are marked with inscriptions, carved by hundreds of Nashvillians waiting to be processed. A few rows from the front, one seems to capture the mood best: “Fuck court.”

Courtroom 1A is home to what’s known as the citation docket. The people filling these pews have been cited for misdemeanor offenses like driving on a suspended license or possessing a small amount of marijuana. After being booked down the hall — having their fingerprints taken and posing for a mug shot — they are directed here, where they’ll be presented with a couple of options by the assistant district attorney and eventually make an appearance before the judge. This is, with no pun intended, the ground floor of the criminal justice system. On this level, the interaction is relatively mild, but the consequences can quickly escalate.

The prosecutor, a woman working on the other side of a waist-high barrier between the gallery and the front of the courtroom, calls out a name. A young man rises from his seat and trudges up to her, holding a small white card on which he’s written his name and address so the state can bill him for court costs.

“Do you have an attorney?” the prosecutor asks. “Do you want an attorney?”

He answers: No and no.

Most of the people in the room will say the same. In 2016, according to court records, 38,267 of the 57,034 defendants who came through General Sessions Court in Nashville did so without an attorney. When a person has been arrested and charged with a crime, they have a constitutional right to legal representation — they can hire an attorney, be represented by a public defender or have a private attorney appointed by the court to represent them. But they can also waive their right to an attorney altogether. And in each of the past three years, more than 60 percent of defendants in General Sessions Court, mostly those coming through Courtroom 1A with citations, have done just that.

Before that happens, a prosecutor and the judge will confirm that the defendants are aware of their rights and do indeed wish to waive them. But truth is, those inquiries are done on autopilot. At times last week, Judge John Aaron Holt, presiding over the citation docket, seemed to be mumbling a recitation of rights to his coffee cup more than ascertaining that citizens were making informed decisions to represent themselves against the state.

Throughout the rest of the morning and the rest of the week, the same scene plays out over and over again. The prosecutor works down the stack of cases, calling individuals by name and making them an offer. Given the high volume of such cases, groups of five or six people facing driver’s license-related citations are frequently called together to have their options laid out for them all at once. Occasionally, a group of people is called and given the spiel through a translator speaking Spanish. In some instances, people will be able to resolve their case immediately by, say, showing a valid Tennessee driver’s license, if they were cited for driving without one.

For years, many of the people filing through Courtroom 1A would agree to what is known as an “under advisement” plea. Under that arrangement, the defendant pleads guilty in court but with the understanding that if they fulfill certain requirements — like obtaining a valid driver’s license or attending a drug awareness class — the case will be dismissed and they will avoid having a conviction on their record. These arrangements are a double-edged sword, legally speaking. Although they can be a successful diversion option for many defendants, they also put the defendant — who has already pleaded guilty — in a potentially precarious situation should they be unable to hold up their end or fail to return to court. In that case, a warrant may be issued for their arrest, and jail time awaits, the beginning of what for many is a cycle of legal trouble and financial debt. In recent years, prosecutors have begun offering a middle-ground option, one that doesn’t involve a guilty plea but still leaves a possible contempt of court charge — and 10 days in jail — hanging over the defendant’s head.

Every day, thousands of defendants agree to such arrangements without an attorney by their side. Why?

A court officer working the door at 1A speculates that most people don’t know how the system works and probably don’t read their citation; they just show up on their court date without an attorney and go with the flow. Some, though, look at the decision practically.

On one morning last week, a 30-year-old man who had just waived his right to an attorney and pleaded guilty to simple possession of marijuana in exchange for a fine explained his decision bluntly outside the courtroom.

“Paying a lawyer to handle that would’ve cost me more than the $250 fine,” he says. “It’s just more expedient to just get it over with. And, you know, truth be told, I had it on me. So, I mean, why try to fight something I did?”

Another young man, who’d overdosed in his car and been caught, also pleaded guilty without a lawyer. A drug paraphernalia charge against him was dropped, and he agreed to pay a $750 fine.

“I’m guilty of it,” he says. “Can’t really fight it.”

The value of an attorney in this courtroom, though, isn’t so much in having a legal bodyguard to fight off a prosecutor, but in having a guide through the often thick and tangled jungle of the criminal justice system.

“It’s concerning to me, because I think many people do not understand the long-term potential cost to them of representing themselves in a criminal case,” says Metro Public Defender Dawn Deaner, who runs the office tasked with providing legal representation to defendants who can’t afford an attorney. “The reality is that there are a lot of collateral consequences in people’s lives as a result of involvement with the criminal justice system. If you’re not a lawyer who is a criminal defense practitioner, you don’t often know what those are, and nobody else in the court system is obligated to tell you what those are.”

What some defendants might not realize, she says, is that they will be charged for court costs regardless of how they’ve resolved their case. Failure to pay them results in a suspended driver’s license, and in fairly short order, many in that situation will find themselves right back in Courtroom 1A again. The clerk’s office, Deaner notes, has begun an effort to better inform the public on that front, but that’s a recent development. And there are other potential legal landmines. Although a guilty plea to a drug charge may bring swift resolution to a day in court, a conviction can affect one’s ability to get a job or housing in the future.

Until recently, Deaner’s office staffed the citation docket with a particular focus on defendants for whom English was a second language, if they spoke it at all. But understaffed and overworked, the Metro Public Defender’s office has had to limit the cases it takes on. As a result, it rarely represents clients here anymore. Deaner does not shy away from the fact that the change may have negative consequences, but describes it as the least bad option.

A defense attorney through and through, she feels alarm any time a person has to face the system without a lawyer. But her view of the citation docket in general is not purely negative. For one thing, the docket itself was created as a reform that aimed to reduce high failure-to-appear rates among defendants by centralizing the process and eliminating what used to be a long gap between booking and an initial court date. On that front, she explains, the docket has been a success. Moreover, she says, citations are a good alternative to arrest and incarceration, and the number of defendants who proceed without an attorney is, in some ways, evidence of the fact that they aren’t having the book thrown at them.

“If there was more aggressive prosecution, perhaps more individuals would be seeking lawyers, but we have a progressive DA who sees the value in providing solutions rather than simply prosecution,” Deaner says, referring to District Attorney Glenn Funk, who has worked with Deaner on some diversion programs — including one aimed at driver’s license violations. Still, the use of special arrangements, such as the “under advisement” pleas, gives her pause.

“It works well when it works well,” she says. “When something doesn’t quite go as planned, then it can be disastrous.”

Funk doesn’t disagree, and he tells the Scene that prosecutors from his office will soon have another option. They’ll be offering a deal that maintains the benefits of the under-advisement plea while reducing the potential disaster that Deaner describes. Under these new deals, known as an “agreed continuance,” defendants will be given a chance to take a court-ordered class or fulfill some other requirement, but without pleading guilty or potentially triggering an automatic jail sentence — it’s a solution that is more carrot than stick. If they fail to take the agreed-upon steps, the DA’s office will decide at that point whether and how to proceed with the prosecution. The defendants will still be held accountable, but if some innocent circumstances prevent them from holding up their end of the deal, a legal hammer won’t drop on them immediately.

Even so, that deal won’t apply to everyone. And in any case, thousands upon thousands of defendants will waive their right to an attorney and walk alone down a path that can easily become a complicated and costly maze. Deaner says she’d like to see judges and prosecutors do more to ensure people don’t make that choice lightly.

Back in the full courtroom, on another morning last week, one woman turns around and asks another a question, gesturing to the woman working through files at the front of the room.

“Is that the DA?” she says.

The second woman shakes her head in response: “I have no earthly idea.”

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