HB 1178 reworks CCP Art. 1.051 to the extent of forbidding the state from "getting over" on a pro se defendant. We have staff in our hot check unit that converse with these types all day long -- working out payments and the like. Do you see any problems with this new change? How far are you willing to stretch an "adversary judicial proceeding"? Is it as simple as having the court admonish them at arraignment and then secure a waiver before they can come see us? What if they come after a warrant issues but before they go to court? Appreciate your thoughts.

Isn't it ironic that the new law is likely to make it more likely that a hot check writer is arrested, so that he can be taken before a magistrate and "warned" about the dangers of working out the check? This is what we call progress.

Kirby v. Illinois said adversary judicial proceedings can be initiated "by way of formal charge, preliminary hearing, indictment, information, or arraignment." So by that definition, an unfiled hot check case would not be an adversary judicial proceeding.

This of course begs the question, can you work out a deal with a pro se defendant regarding an unfiled case, then file it and proceed without counsel? If so, what prevents a prosecutor from preparing all his cases for filing, but waiting to file them until after he has spoken to the unrepresented defendants and secured their agreement to waive counsel? While this would seem to be circumventing the statute, requiring the State to file the charge, make an arrest, and send the defendant before a judge before talking to him about a hot check was probably not the intent, either.

Best of luck figuring it out.

From Disciplinary Rules:

3.09 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

2 kinds of check cases, filed and unfiled. It's easy to solve the problem for the filed cases, when D comes to court, the Judge admonishes the D's as to their rights and tells them they can waive right to counsel to pay off checks/fees/court costs if they desire.

The quagmire is for the unfiled cases. Is it a violation of disciplinary rules to talk to an unrepresented D on an unfiled hot check case?

Would a written waiver of rights from an unrepresented D who wants to avail themselves of paying off the checks and fees prior to filing legitimize the actions of resolving these cases?

quote:

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Originally posted by Wesley Wittig:
Is it as simple as having the court admonish them at arraignment and then secure a waiver before they can come see us?

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Yep.

quote:

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Originally posted by Wesley Wittig:
What if they come after a warrant issues but before they go to court?

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quote:

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Originally posted by Greg Gilleland:
Would a written waiver of rights from an unrepresented D who wants to avail themselves of paying off the checks and fees prior to filing legitimize the actions of resolving these cases?

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If the information/indictment has been filed, they need to see a judge before talking to anyone in the prosecutor's office.

If the information/indictment has not been filed, you're in a grey legal area, but ethically your office should probably refrain from communicating with that person about the disposition of their case. There's no way for a defendant to properly waive his right to counsel without doing it before a judge, and there's no way to get a person before a judge without having active charges pending, so I don't see how some pre-charge waiver of counsel for an eventual disposition of that case would stick.

And if that results in more people suffering the ignominy of arrest ... well, tell them to complain to their legislator, I guess!

I do not see a problem talking with unrepresented defendants on an unfiled hot check case. Generally, those who pay off their checks timely do not have charges filed against them. And, issuance of a hot check is just a Class C and not covered by the new legislation.

In my view, the world is divided into two groups: Criminal Defendants and Potential Criminal Defendants. Criminal Defendants are those against whom some prosecutor or a grand jury has begun adversarial judicial proceedings. Article 1.051 applies to communications with these people. The rest of the population-the pool of Potential Criminal Defendants-may be communicated with in a fairly unfettered manner, within the appropriate ethical guidelines.
Am I mistaken?

I think you're right, John. I didn't mean my post to imply that a prosecutor or his staff cannot talk to anyone who might have written a bad check, especially if the case is going to be dismissed or disposed of without court proceedings. But if you know you intend to press charges and seek a conviction, etc., I recommend steering clear of pre-waiver communications, just to be safe.

Ken, where I came from, "hot checks" covered both Class C IBCs and higher-level theft-by-checks. You are correct that HB 1178's requirements are n/a to Class C IBCs, but not everyone uses "hot check" to mean the same thing, so we should all be careful about throwing around that term, or confusion might result.

Your responses are generally what I thought as well. I was speaking of check cases where charges were filed, irregardless of their arrest status and not class C cases. Thank you for your input.

What if you initiate contact through a grand jury subpoena? Does that trigger the new law?

We have some who come to our office after a warrant has issued (they have been formally charged) and begin payments at which time we withdraw the warrant. I guess now we can't talk to them or reset them and withdraw the warrant until they see the judge. That won't happen unless they are arrested. The cycle of hot check violence continues...

OK, now I am more confused than I was before. Or maybe I just confused others in the phrasing of my question. I understand how to treat a charged defendant, but my question is concerning those hot check writers who have not been charged but merely sent a letter from our office seeking payment of the hot checks.

Of course, we would not talk to a person whom we knew we were going to seek a conviction on.

Most cases never get filed. Most folks make restitution in full and the case never gets filed. A large portion of those checks that are dealt with in this manner are class B. Out of this pool of uncharged check writers, cases are sometimes ultimately filed if persons don't respond to letters or fail to pay after establishing contact with our office. There is no real way to predict which unfiled cases might ultimately be filed because a person fails to make full or any payment after contacting our office.

These populations are the ones I am concerned about in this thread.

Shannon, can your synthesize these two seemingly opposing quotes of yours?

"If the information/indictment has not been filed, you're in a grey legal area, but ethically your office should probably refrain from communicating with that person about the disposition of their case. There's no way for a defendant to properly waive his right to counsel without doing it before a judge, and there's no way to get a person before a judge without having active charges pending, so I don't see how some pre-charge waiver of counsel for an eventual disposition of that case would stick."

vs.

"I think you're right, John. I didn't mean my post to imply that a prosecutor or his staff cannot talk to anyone who might have written a bad check, especially if the case is going to be dismissed or disposed of without court proceedings. But if you know you intend to press charges and seek a conviction, etc., I recommend steering clear of pre-waiver communications, just to be safe."

He's a flip flopper.

Or is he more like Meg Ryan in Joe vs. The Volcano, a flibbertigibbet?

Flibbertigibbet may refer to two separate cultural figures:

In Anglo-Saxon mythology Flibbertigibbet is apprentice to Wayland Smith, who becomes exasperated with his behaviour and throws him down a hill, where he transforms into a stone.

In Shakespeare he is one of the five fiends that possessed 'poor Tom' in King Lear (IV, i (1605)). Shakespeare got the name from Samuel Harsnet's Declaration of Egregious Popish Impostures (1603), where one reads of 40 fiends, which Jesuits cast out and among which was Fliberdigibbet, a name that had been previously used by Latimer and others for a mischievous gossip.

Elsewhere the name is apparently a synonym for Puck. Its origin is in a meaningless representation of chattering.

A "flip-flop" (used mostly in the United States) or a U-turn (used in the United Kingdom) is a sudden real or apparent change of policy or opinion. Usually it will occur during the period prior to an election in order to maximize the candidate's popularity.

The charge was originally used to attack politicians for making election policies that they either had no intention of keeping or decided not to keep for political convenience.

You're turning into Cathy Cochran, what with all these literary references.

It does appear to be a flip-flop, tho...

Compliments of Wickipedia.

I have a couple of related but slightly different questions about this whole issue of when we can talk to defendant and who can talk to them -- what about defendants in JP court? In our county we talk to JP cour defendants at a pretrial setting every month, in order to resolve most of them without a trial. I know that ordinarily a Class C defendant does not have the right to counsel, so it should not be an issue; however, if you read the new additions to CCP 1.051(c), it says that an indigent defendant has the right to an attorney in any adversarial proceeding that may result in punishment by confinement AND IN ANY OTHER CRIMINAL PROCEEDING IF THE COURT CONCLUDES THAT THE INTERESTS OF JUSTICE REQUIRE REPRESENTATION (my emphasis).

So, does that mean that I have to make sure that the JP's all make a determination on each case regarding indigence and whether the interests of justice require representation for these defendants before I talk to them?

Other questions, raised by a local bail bondsman - If one of their unrepresented clients can't make it to arraignment for some legitimate reason, like being in the hospital, for instance, the bondsman or client used to call the prosecutor's office to ask for a reset. The client probably can't do that now, but the bondsman wants to know if they will be prohibited from doing the calling on the defendant's behalf?

Thank you, legislature!

IBailey,

Back when I did JP rounds, my JPs would take the bench at the start of the docket and talk to everyone about just some generalities of the case and their rights, then explain who I was and what I could and could not do for them. He'd do the whole "the DA is not your lawyer" spiel, then let them know that anyone who wanted to talk to me could do so, then he'd be back in a little while to handle everything else. It always worked out pretty well, and it beat me having to explain the same thing twenty times or everyone insisting on going to trial because they wouldn't tell me their defense that would result in me dismissing the case. I'd think the same thing would work under this law.