While the felony ranks aptly debate the issues concerning HB 2193, I have become increasingly concerned about the potential impact of HB 3152, which effectively cuts off the ability to negotiate pro se plea agreements in misdemeanor cases (it applies to felonies, too, but as has been pointed out to me, those defendants almost always have lawyers) until after the judge asks them, "are you really, really sure you don't want a lawyer?" Aside from the predictable increase in court-appointed counsel fees for misdemeanor cases, I see this new law making substantial changes to the way we run our hot check operation. Has anyone else prepared for this or have a plan of operation they wouldn't mind sharing?

Scott,
Does the prohibition apply to those who have merely received letters from the prosecutor's office? Typically in our cases, they have not been arrested or charged at that point. Once arrested, I assume the prohibition would apply and they would be treated as any other defendant. You can read my rant in a prior post under thew heading HB 3152! What are your specific concerns (that I'm sure I have'nt yet thought of).

At this time, the defendants in my jail who want to talk with me have to request it. I plan to add a waiver to the forms that the magistrate has, so that the person can sign it then. Of course, the understanding has been and will remain that counsel will be appointed if we fail to reach an agreement.

On our "Wild Wednesday" when we deal with masses of unrepresenteds, we normally start with the defendants in the courtroom being "warned" by the judge. I plan to give him a stack of the waivers, and ask that he have them sign prior to sending them back to my office.

Lisa,
I hope the forms will be available to those of us who are to lazy(or in my case dumb) to draft their own!

The bill states that the Judge has to advise the def of the dangers and disavantages of self-representation "whether for purposes of entering a guilty plea or proceeding to trial." As a new CCAL judge that was a prosecutor for 16 years, I'll go to great lengths to persuade a Def who wants a trial to get an attorney. A trial with a pro se def is no good for anybody involved in the process. If the def wants to negotiate a plea offer I'll tell them that they should only do so if they are already inclined to plead guilty and I'll warn them that anything they say can be used against them. That's about it and many choose to speak with a prosecutor at that point.

Do other judges make this distinction? What warnings do they give to defs that want to negotiate a plea without an attorney? Do any prosecutors avoid negotiations entirely and simply allow defs to make open pleas to the judge and let the judge set punishment? I'm just trying to get an idea of how other courts deal with pro se defendants.

By the way, not that money is our prime concern in these tough times when every county is trying to make ends meet, but the fiscal notes attached to the engrossed version of HB 3152 declare that "no fiscal implication to units of local government is anticipated." Wait until those bills for court appointed attorneys fees start rolling in after Sept. 1.

For those of us here in Midland County we are a little scared as to how this bill will actually affect our process for moving cases.

We currently move 70% of our cases during arraignments, where we speak to the defendants directly. We have defendants waive their right to an attorney but do not admonish them on the benefits (I use that term loosely) of having one present. After waiving their right to an attorney we then make them an offer and plea them.

We are pretty sure that we will be able to speak with a defendant directly AFTER they have been advised of the right to counsel and given a reasonable opportunity to obtain counsel. The real problem we see will be the increase in the number of court appointed attorneys, docket calls, and an even larger backlog docket.

Since we are not sure how this will affect us, and not to mention the county budget, we are supporting a veto on this bill.

The statute only prohibits communication with defendants who have requested appointment of counsel. Just because they have not yet waived the right to counsel does not mean they have requested an appointed attorney. And the person must actually be a defendant (formally charged), so I just do not see any problem with communicating with someone about a hot check. Also a waiver later obtained will not be the result of any violation of (a-1)(2) so long as there was no request for counsel prior to the communication- so no presumption about its validity will arise.

One has to wonder why the judge of the court in which the case is pending must again advise a defendant of the right to counsel and the procedure for obtaining counsel when this will almost certainly already have occurred within 24 hours of his arrest. But, because of that, it would certainly appear the defendant will already have been given a reasonable opportunity to obtain counsel in most cases.

Has there been some big problem with prosecutors trying to obtain from unrepresented defendants a waiver of the right to counsel or was that just thrown in for good measure?

There seems to be no doubt that fewer and fewer defendants will choose to represent themselves (voluntarily) after Sept. 1 and that the process for obtaining counsel will merely be lenghtened for those who delay in their request for appointed counsel. The decision in the Johnson line of cases made more sense and represented a better public policy outcome. See Barras, 902 S.W.2d at 180. But, hey, we need more opportunities for contested trials, ineffective assistance claims, processing delay, and appointed attorney fees don't we?

The way I read the bill (a-1) says that the attorney for the state in a criminal case may not initiate or encourage an attempt to obtain from an unrepresented defendant a waiver of right to counsel. I believe that prohibits all conversation until the waiver has been obtained. The bill also includes a sample waiver form that must be signed before the state attorney can talk to the defendant and the court must obtain that waiver by advising him not only of his rights but the dangers and disadvantages of self-representation. My personal feeling, as an appellate attorney, is the best way to handle this on arraignment day is to let the court advise the defendant and get the waiver signed before the state's attorney even speaks to the defendant. I think it will save alot of appeals on the question of the exact moment the waiver is signed.

This bill may backfire. If it gets judges to formalize and emphasize the waiver of counsel issue, it could lead to earlier and more frequent waivers of right to counsel. Hmm.

Patricia, why do you conclude (a-1) prohibits all communication until a waiver has been obtained? I am familiar with Tex.Discip.R.Prof.Cond. 4.02(a) and 3.09(c), but do they prohibit all conversation about the case? Is merely making a settlement offer a form of "encouragement" (even though the offer will likely contain a condition of waivers)? I guess you are just saying that the amendment to 1.051 is the law prohibiting such practice mentioned at the end of comment 4 to Rule 3.09 and that any discussion about resolution of the charge necessarily will include the prosecutor advising the accused of his pre-trial, trial and post-trial rights.

I suppose the point is that in Texas misdemeanors will now be handled much like felonies so far as plea bargaining is concerned. In this, the statute seems to ignore what was said in Scott, 440 U.S. 367 (that extending Argersinger to all misdemeanors punishable by jail time will "impose unpredictable, but necessarily substantial, costs".

Well, I suppose you don't need defense counsel, especially if it is going to cost anyone money. God forbid we spend any money protecting the rights of MISDEMEANOR defendants.

Then again, do we really need prosecutors? We have a Judge, and he/she is presumed to be fair and impartial. That Judge approves all plea bargains and rejects the ones he/she doesn't like. A new (or old) prosecutor learns quick to fall in line with the Judge's 'parameters' of what he/she will accept. Therefore, it is really the Judge making the ultimate decisions. If you cut out the prosecutors, you could save a hell of a lot of money, in salary, benefits, longevity pay, retirement, etc... Not to mention that the prosecutors at least get a cost of living adjustment every year (that no one seems to complain about).

Now, I know you'll say that the State has the RIGHT to be represented, but considering that the Judge has the ultimate say on offers, the State's representation could be considered illusory. Let's just cut out all the money problems and let the Judge's handle it. That way, no one can argue about the incredible amount of defense counsel fees (that never seem to affect the pay of prosecutors anyway).

In most JP courts, there is no prosecutor; most things are handled by the judge, and this seems to work well in most cases.

In more serious cases, there is a need for a prosecutor, to make decisions on whether or not to prosecute, and to decide what sentence is acceptable for a plea of guilty. There is not an equal need for a defense attorney in every case, because many defendants are perfectly capable of representing themselves in court, especially if they agree that they are guilty of the crime they are charged with.

The budget analysis of this bill is simply false: it will cost local government more money to pay for court appointed attorneys. That should be a legitimate concern of the legislature, altho it rarely seems to be.

No one is saying that a defendant doesn't need a lawyer when a defendant pleas not guilty.

But, when 80% of defendants come into the first misdemeanor arraignment asking if they can just get probation, why should there be a formal-on-paper-time-wasting-reminding of the defendant after they've been Mirandized, Magistrated, and Arraigned?

Are you sure?
Are you really sure?
Are you really really sure?
Are you really really really sure?

Ok, sign this form, then this one, oh give us a blood sample and a finger print. Two photos, a video tape, a thermal image and a stool sample.

Now you may talk to the prosecution, whom we assume are going to give you the maximum possible punishment without thought or merit for the facts of the case or the potential range of punishment.

Next?

Last time I was at the NAC, we had a really good ethics lecture by Jim Dedman. I chatted with him afterwards. FOR MIKE HARTMAN: Jim said my practice of sending out plea offers by letter was a violation of the ethics code. We argued, etc. When I got home I bounced it off the Dist Judge and he said it was OK. Looks like all that is OBE because of 3152.

Now as a result of HB 3152, I believe it would be an ethical violation to send out a plea offer letter to an unrepresented defendant.

Scott, I don't see how this bill got passed. I'm just a small cog here, but were we all asleep at the wheel?

Sounds to me like Lisa's approach is about as good as we are going to get.

Upon reading the bill, It refers to a "defendant". In the case of a hot check writer and a courtesy letter, I don't believe there is a defendant. There is a potential defendant if they disregard the letter or fail to provide a reason they should not be held liable for the check amount etc. Further, there is not really a plea negotiation, there is no plea and no reason for one, unless the check amounts aren't satisfied.
No law enforcement officer has contacted these folks at this point, it is merely an attempt to resolve an issue prior any criminal prosecution action being taken. I understand we may be talking semantics here but, there is no "defendant" as I see it in this process. I do not send out other offer letters to unrepresented defendants in any criminal case and always advise them of their right to counsel( in person) before we discuss any details of the case or plea offers. Additionally, I advise them if they elect to talk to me and don't like the offer, they still have the right to discuss the case with either an attorney of their chosing or a court appointed one.
I don't see anything wrong or unethical with either of those situations as I am being completely candid with the defendant at all times even going so far as to tell them I don't represent them, I represent the State and can not give them legal advice.
At what point does a suspect become a defendant? When formal charges (informations) are filed?
I think I will be less likely and the judge will be less likey to be accomodating on court day if he has to give these warnings and, as is always the case, several defendants arrive 15- 120 minutes late for court and miss that part of the proceeding and must be dealt with individually. I see more NISI's and FTA's as a result.
Sounds to me like a "Farretta(sp) warning" that is contemplated here.
Other ideas appreciated.
Lisa, what does your Judge do with late arrivals?

Naturally, anyone who wants them is welcome to any form I create! Being a "jack of all trades" virtually assures that I am a master of none. What ego I have left is certainly not wrapped up in forms! Ask and you shall receive, edit as you see fit

On the late comers - the attitude of the Court is dependant on a variety of factors which will not be ennumerated here. However - unlucky ones find that their bond has been found insufficient and they take a walk with the bailiff Luckier ones get a posterior mastication, wait until all the others have seen the judge, then get to visit with him and receive another chomping. After that, they visit with me - and, surprisingly, most are still interested in an offer.

Perhaps I'm optimistic - I don't believe that, when the court sends the person to see me in my office, that I'm initiating a request that the person waive their right to counsel. You urban folk may not believe it, but it is not uncommon for people to try to get an offer from me before I ever receive the offense report. They get arrested, do not wish to contest the charge, and want to get on with their lives. Visiting with them is not an attempt to cut out the local defense bar - they are well aware of the practice, and, to the best of my knowledge, approve of it. If we appointed counsel for all of these, they would have no time for their paying clients.

It sounds like this is yet another dumb bill the legislature passed with no regard for the actual cost to their counties.

However, it doesn't become a bill until the governor signs or doesn't sign. I would think he would appreciate hearing from all you misd. prosecutors about the practical effects of this noxious bill. He's not been shy about vetoing bad bills in the past.

If you oppose this or any other bill, write the guv and fax it to his office: (512) 463-1849.

But you better do it quick. He's signing more bills every day, and I think his deadline is 19 June.

The reason I believe that it may cut off communication before the judge admonishes then on their right to counsel is because many times when we talk to them about the plea bargain although the court may give them the paperwork regarding the waiver of counsel, but it is not until we start talking to them that they ask about it and sign it. Our written waiver is very long and complicated as it admonishes the defendant about their rights as well as the dangers of self-representation. Sometimes these defendants ask questions about the form- so can we answer them or is that considered an attempt to encourage the waiver. Wouldn't it be simpler under the new law for the court to admonish them, and have them sign the waiver before we talk to them at all?

Initially, Mike, I think you're correct that the statute's use of the term "defendant" can be argued to limit its applicability to those instances in which formal, adversary criminal proceedings have been commenced. Thus, the average hot check case, handled by agreement before charges are filed, should not present a problem.

Here, however, some cases do end up being charged when the checkwriter, now defendant, fails to abide by his/her agreement to pay up. As it currently stands, we still resolve almost all of those by plea agreement to collect all the rest of the money then, perhaps, reduce to a class C IBC. Those cases, while not as numerous as the pre-filing agreement cases, still are quite numerous in my jurisdiction. The new statute will bring the attempts to resolve those cases, as discussed above, to a grinding halt.

And I'm in agreement with Phillip in that experience teaches that probably 80 percent or more of our misdemeanor defendants who come in during "walk-ins" (initial arraignments) want to get the matter resolved by probation or a work-release plea that day. All the bill seems to do is require the county to pay an extra $200-$400 to defense counsel to get, in all likelihood, the same deal we would have extended to the defendant as a pro se. We're either going to offer probation or a bigger fine for less jail time or we're not. If the defendant has doubts, we already tell them to go try to get a lawyer or ask for appointed counsel, so I don't particularly ascribe to the notion that the rights of misdemeanor defendants are currently being trampled and there is a great need for an expensive change.

As an aside, since we're necessarily talking about pro ses, Disciplinary Rule 4.02 is inapposite. It's Rule 4.03 that might be implicated, but it's concerned with making sure the unrepresented person understands the lawyer's interests and role in the matter. Martin is correct that the real "meat and potatoes" rule implicated is Disciplinary Rule 3.09(c), which the statute substantially parrots. It's an interesting question whether making a plea offer to a pro se defendant, which generally necessarily carries with it the need for waivers, facially violates the rule. The issue would be clearer if there was a bit more definitive guidance, in the statute or the rule, concerning what the terms "intiate or encourage" are considered to mean.

[This message was edited by Scott Brumley on 06-08-05 at .]

[This message was edited by Scott Brumley on 06-08-05 at .]

Scott,
We have the same problem with check writers who do not follow through, and charges must be filed. The typical agreement is some sort of deferred adj. and a probationary term with early release being offerd once all the resitution is paid, if the probation fees are current. Those cases are set on our regular docket, so they would be included with the other criminal cases and, I assume, get the warnings from the judge at docket call when all the other defendants receive theirs. One last question, even though early in the process, could these warnings and admonishments be added to the typical magistrate warnings that most defendants receive when bond is set by a judge? although some never see the judge and are released on bond directly from the jail, about 80-90% see the magistrate to set bond etc. How about telling them then?
Is anyone wanting to write the Gov. and urge a veto? Should we do it in one mailing as previously recommended by his office on another matter? I don't want anyone to think we are advocating taking advantage of unrepresented defendants because the reality is it appears we all go to great lengths make sure the defendants know of their right to counsel.