So those of us in a one attorney office, with a high school graduate for a county judge, how shall we proceed? How did this bit of legislation pass? Anyone have any ideas already? Talk about throwing a monkey wrench into the works!

I have devised a warning form for my county judge to use. After he calls the docket he will ask all the defendants without an attorney to stand. The form that apears below will be passed out to each of them and the judge will read it to them as a group. Then, they will indicate their choice and sign the form which will be filed with the clerk.

JUDGE'S EXPLANATION OF RIGHTS
TO DEFENDANTS WITHOUT AN ATTORNEY

As a defendant in a criminal case, you have three options:
1. You may hire an attorney;
2. You may request an attorney be appointed to represent you, if you are financially unable to hire one; or
3. You may represent yourself.

If you want an attorney to represent you and are financially able to hire an attorney, I will reset this case for approximately 30 days for you to do so.

If you want an attorney and do not have the money to hire one, you will need to fill out a financial questionaire so I can determine whether to appoint an attorney to represent you.

You may not speak to one of the prosecutors about your case unless you decide to waive your right to an attorney.


**********************************************

DEFENDANT'S CHOICE


____ I want to reset this case to hire my own attorney.

____ I want to apply for a court-appointed attorney.

____ I want to waive my right to an attorney and represent myself.


Name: _________________________________________

Date: _________________________________________

Cause #: _______________________

Thanks, Ken. Appreciate the effort. Mike

Ken,
I like your idea, and we've considered it, BUT doesn't this bit of "legislative wisdom" require a finding of non-indigent status before a waiver can be signed and a plea entered the same day under Sec. 1(e)? We've looked at this thing hard, and it's a mess. One thing we thought about, which I think already occurs in some counties, is to have a lawyer, or lawyers, at the arraignment docket to be appointed to all "indigents", (on a flat per diem basis), so a waiver and plea can happen on the same day. One problem with that is who the "lawyer(s) of the day" is/are. Some lawyers can look at our file, talk to a defendant, and advise them to dispose of their case, if that is what should be done. Others just cannot abide any disposition at arraignment and would automatically advise even even the most admittedly guilty to insist on a jury trial,(in which event another "permanent" lawyer would have to be appointed). I think we are all really really looking for some way to avoid the misdemeanor docket nightmare this rag will cause unless we can come up with a constitutionally acceptable procedure. I hope lots of folks chime in on this.

I like Spark's form, but I would add 2 important pieces of info.

In the paragraph that says if you want an attorney, but are indigent, I'd add something like: "Keep in mind that if you receive a probationary sentence, a standard condition of probation is that you re-pay the county the cost of the attorney hired to represent you."

In the paragraph that explains you may represent yourself in dealing with the prosecutor, I would add something like, "the great majority of criminal cases in this court are resolved by an agreed 'plea bargain' between the defendant and the prosecutor. A plea bargain means that the prosecutor offers to recommend a specific, agreed upon sentence, if the defendant pleads guilty. If you opt to discuss your case with the prosecutor and you decide you need the services of an attorney, you will be free to hire your own attorney, or to request a court-appointed attorney if you are indigent. Anything you tell the prosecutor about your case while negociating with him will not be used against you should your case go to trial."

Yeah, I know--it's a bit wordy. Maybe someone else can state it better and more concisely. But I think it is very important that misdemeanor defendants know that in many, many cases, getting a court appointed attorney is not the same thing as getting a "free attorney." I also think it's only fair that they know they can try to represent themselves and if they figure they are in over their heads, they can always get an attorney.

The fact is, the great majority of county court defendants can represent themselves just as well, and at less expense to themselves, than if they hire an attorney or get a court appointed attorney. For most of them, the cost of a court appointed attorney is very dear to them, and they might appreciate some straight talk from the bench.

I would agree with Ken and disagree with Terry's advisory statements. Just state the choices as dictated by law without editorializing.

It's not editorializing, its stating the facts, which laymen need to make an informed decision.

If they do not have these facts, many defendants will opt to hire their own atty. or get a court appointed attorney, when they might otherwise have handled the matter just as well, but quicker and cheaper without one.

You guys are doing good lawyering on the communication end of this thing. I agree with what everyone has said about getting frank and correct information to misdemeanor defendants so they can make an informed decision. Especially the part about clarifying that a court appointed lawyer is not "free".
Still, subsec. 1(e) bothers me on how you can take lawyerless pleas from people who can't afford a lawyer, without another "dispositive setting" in the future. The working poor have a hard enough time making it to an arraignment docket. Then they have to take off another day of work to come to the "10 day" docket. It just doesn't make sense. You're lucky to get the other indigents, the non-working poor and nere do wells the first time, an extra setting would probably result in a bigger nisi docket. Finally the ones who can't even make bond, and don't want the delay that is always caused by waiting on a court appointed lawyer, stay in jail another two weeks. Not to mention the extra court, bailiff, jailer and prosecutor time.
Probably I'm missing some obvious point. Can you set me back on track?

Our first attempt at drafting appropriate paperwork contains a waiver of notice periods. Of course, the initial court setting, as always, will have 10 days notice, but when they then appear without an attorney they would have the opportunity to waive the additional 10 day notice period if they want to dispose of their case that day. Is there a prohibition to such a waiver? I would include our entire draft form, but it is extremely long. I certainly can e-mail it to anyone that wants it.

Our office routinely sends out plea offers in the mail to defendants--especially on DWLIs or thefts by check these are extremely helpful because many defendants show up ready to pay for a straight conviction or for restitution and fees and don't want to come back again.

Under this new statute, should we refrain from sending out those letters?

These defendants should be made aware that they will have to pay for the attorneys--most hear the Miranda warnings on tv that say "if you cannot afford to hire an attorney, one will be appointed to you free of charge" and when I'm the one telling them they will have to pay for it through their probation or with their straight conviction costs, it sounds like I'm trying to talk them out of asking for one.

I may be wrong, but I don't think that can be done any longer. As others have pointed out, the process is going to be slower in many instances.

That's what I'm talking about. Under 1(e), if an indigent shows up at a dispositive setting without a lawyer, there does not appear to be any way under this statutory scheme to have a guilty or nolo plea without an additional 10 day notice OR a lawyer doing the waiving, UNLESS the person is found to be non-indigent.

I don't think that the statute prohibits a defendant from waiving an additional 10 days notice or from waiving any time periods, so long as he is not encouraged to do so. I think the judge can advise him of those options, which is why our form is so long. But if it can't be done for some reason we're missing, we sure don't want to go down that road.

HB 1178 is a primo example of the legislature "solving" a non-problem, thereby causing real problems, which they then walk away from. The result of this statute will be a more clogged up misd. court system, which will cost the counties and defendants more money (which, of course will not be made up by the legislature)and no improvement in the justice being meted out.

As prosecutors, we have all seen many examples of defendants who refused to listen to their attorneys, and then got wholluped. I am sure the same thing happens on the civil side, where clients blow off the strong advice of their attorneys, only to greatly regret it later. The same thing happens with the legislature. They rarely listen to their constituants' attorneys who represent them in the criminal courts--namely prosecutors--and as a result, make a hash of things.

An argument could be made by a pro se defendant that this new law infringes on his right to represent himself. The law actually discourages self-representation and places procedural barriars in the way of a decision for self-representation.

A similar law (and claim) already exists. The CCP says that an unrepresented defendant must be appointed a lawyer before waiving the right to a jury in a felony case. See art. 1.13(c). Well, that law imposes upon a defendant, who may well have decided that he wants to represent himself, the obligation of accepting the attorney to accomplish a waiver he has a right to accomplish without an attorney.

[This message was edited by JB on 08-10-07 at .]

Mr. Pratt, could you please email me your waiver example? Thanks.

I disagree about not being able to dispose of the case on the same date a defendant waives his right to an attorney. If you can waive your right to a jury trial, you can waive anything else.

I interpret Subsection (e) to mean that the court needs to give the defendant at least 10 days to prepare for a trial or other dispositive hearing. There is no indication that this time period cannot be waived.

The standard waiver in the plea paperwork we all use includes a waiver of time to prepare for trial. That should suffice.

If the time period cannot be waived, and the dude is stuck in jail, then this is like an extra automatic time he has to be in jail.

I agree. The Legislature did not override the general ability to waive any right given by this new law. Article 1.14(a), CCP, gives the defendant the general right to waive constitutional and statutory rights.

(a) Ken's proposed form and related practice appears to me to be sound, and one worthy of emulation.

(b) I would recommend against adding non-statutory information to your written warnings. That kind of surplusage may not be viewed kindly on appellate review. The safest course is to stick to the basics.

(c) Letters sent to unrepresented defendants about working out their cases should be considered verboten. They need to come to court and waive counsel first. There may be some wiggle room if an information has not yet been filed, depending on when you believe "adversarial judicial proceedings" begin, but that's such a crapshoot that I would advise against it. Note also that since this prohibition probably extends to prosecutor's staff as well (clerks, investigators, etc.), it will make hot check dispositions loads of fun.

(d) An unrepresented defendant CAN waive counsel and waive the 10 days to talk to the prosecutor.

OK, that was more like four cents, but those are some of my thoughts gleaned from discussing these issues with attendees at our legislative updates.