Seems as if we went thorough this last session. Surely there are lots of us who don't have a county court at law, and who practice under a non-lawyer, county judge. If we can't give a pro se defendant his rights, and ask how he wants to plead, who's to do it? Can we live with this? Ideas?

Seems alot like HB3152 by Escobar, that was vetoed last session. HB3152--79th Leg.

I have a feeling that we are going to have to get together and start combating the idea that the big bad state's attorney browbeats people into pleas. In my jurisdiction, of those who do not make bond, easily 90% will sign a document asking that I come visit with them about their case. The "word" in the jail is that an appointed lawyer won't get you any better deal and will take longer.

For those one bond, we have a monthly "plea and arraignment day". The phone rings off the desk with people wanting to talk to me prior to that. When they come in on THE DAY, they are lectured by the Court on their rights for about 30 minutes, then have an individual conference at the bench, then may talk with me if they choose. About 80% of the docket moves that way. When talking with me, many will tell me that a local attorney suggested that they visit with me and see if an agreement can be reached. Many are aware that court appointed counsel will eventually run them more in costs, and time. They simply want to tell their tale, get the best deal that they can and get on with their lives.

Problem is, how do we get this word out?

Lisa L. Peterson
Nolan County Attorney

John, yes it was proposed last session, but it has been resurrected.

Lisa, your system sounds great, but do you have a County Court at Law Judge? We don't.

No interest out there about this bill?

Mike

Lots of interest. No reason to show it on this thread.

Sorry, Mike, I was just trying to put more background in there. I think it of note that it passed but was vetoed, rather than merely being proposed.

Yes, we have a CCL, but were doing this long before that happened. Besides, as I read it, there would still be some pretty serious changes required.

Do we need to create some alternative to offer that would be more palatable to us and answer the "big bad prosecutor" issue?

Lisa L. Peterson
Nolan County Attorney

If you have questions or suggestions, the best place to convey them is to Shannon Edmonds at TDCAA, who assists prosecutors in working with the Legislature.

JB, I did discuss this with Shannon ahead of time. Sorry to have bothered you.

Pending legislation can be an appropriate topic for discussion on this educational forum, but only in the same manner that you would discuss a recent court case -- i.e., what are its implications, consequences, interpretations, etc.

Anyone wishing to engage in an effort to affect legislation should contact me (as Mike did) and work through other channels to conduct that business.

If anyone has questions about this policy, please call or email me.

Thanks,
-Shannon

Well, my last comment certainly (and unintentionally) ended this conversation prematurely.

Let me ask this question in accordance with our website policy: What is it about these bills that will cause problems in rural counties if they are passed and implemented? (Note that the new bills are slightly different from the one vetoed last session.)

You may post here or email me directly.

Thanks,
-Shannon

There is a very dangerous new part of the bill. See HB 1178. Notice that the bill requires a judge to warn a defendant of "the nature of the charges" and the "dangers and disadvantages of self-representation" should the defendant desire to represent himself -- EVEN IF THE DEFENDANT IS PLEADING GUILTY.

This is a radical addition to the law that will absolutely impose a substantial new burden on guilty pleas and result in unnecessary reversals.

Current law indicates that a defendant may waive his right to counsel and enter a guilty plea. That happens thousands of times a year in every state in the United States. It is a very legal, appropriate way for a defendant to resolve his criminal case.

Current law also indicates the waiver is sufficient if the defendant is advised of the right to counsel and waives it. The Supreme Court and the Texas courts have said it is not necessary to provide additional Faretta warnings for a defendant who is waiving his right to counsel and pleading guilty. See Iowa v. Tovar, 541 U.S. 77 (2004); State v. Finstad, 866 S.W.2d 815.

This bill would require the judge to go further than required by the US Constitution. Despite the fact that a trial is not taking place, the bill would impose the unwarranted requirement of Faretta warnings (the dangers and disadvantages) and this newly invented warning (the nature of the charges).

For what? So the defendant can later complain and get his guilty plea reversed because of bad paperwork? And what, exactly, is involved in warning the defendant about the "nature of the charges"? How is that any different from arraignment?

Setting aside anyone's opinions about whether a prosecutor should talk to an unrepresented defendant, this bill is highly objectionable for imposing new and unneccessary warnings preceding a guilty plea. It seems designed to discourage a guilty plea on the grounds that no reasonable defendant would do so without being represented by at least a county-hired lawyer.

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[This message was edited by JB on 02-19-07 at .]

This will cause a problem if a prosecutor cannot even speak to a crimnal defendant to extend a plea bargain offer in county court. It is an indirect requirement that all county court defendants be appointed an attoreny, which will be another unfunded mandate which will cost rural counties money that they do not have.

A large percentage of first offenders in my county plead guilty to the same plea bargain recommendation whether they have an attorney or not.

If a misdemeanor defendant is so convinced of his own guilt that he's willing to accept a quick resolution that seems to fairly address his conduct, does the mere potential that a smart defense attorney might have been able to "beat" the case invalidate that? Apparently there's now a fundamental right to escape responsibility by any possible means. Are we entitled to the best possible defense, whether we want it or not? Seems to be what we're saying by browbeating defendants into choosing to be represented. You could argue that it is dumb in some instances to plead without having competent counsel review the case, but isn't the stupidity of most criminals sort of the grease that makes the system work?

Shannon, pure and simple, as Ken points out, it's another unfunded mandate. It will translate into more court-appointed attorneys and delay prosecution for needless lawyer processes. Our plea agreement guidelines are the same for both pro se defendants and those with court-appointed attorneys (we cut a little slack on fines for those who retain an attorney). Just like SB6 from the last session mandated attorneys for all indigent parents in CPS cases (and doubled my staff's workload as a result)and the onslaught of DWLS/I cases as a result of the surcharge legislation, this is another monstrosity for prosecutors.

I am assuming that the problem with unrepresented defendants is a bigger issue in misd. cases than felonies. In reading the court restructuring article on the front page of the website I had a question about the 2 topics together.....Would requiring judges at the county court level to be attorneys alleiviate whatever concern is out there?
The pure volume of cases in misdemeanor court is going to grind the moving of cases to a halt.
Wouldn't a trained attorney judge be able to insure that the plea is voluntary and not the result of over reaching by the prosecutor without, the requirements being mandated by this statute?

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Originally posted by Ken Sparks:
This will cause a problem if a prosecutor cannot even speak to a crimnal defendant to extend a plea bargain offer in county court. It is an indirect requirement that all county court defendants be appointed an attoreny, which will be another unfunded mandate which will cost rural counties money that they do not have.

A large percentage of first offenders in my county plead guilty to the same plea bargain recommendation whether they have an attorney or not.

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Those are good comments, Ken & co., thanks.

I highlighted Ken's comment because I don't see where the bill overtly prevents you from speaking to pro se defendants -- it just requires more warnings and delays before you can do so. Granted, there are some objectionable things added to the warnings, and the delays are where the cost issue comes in (which makes me wonder if anyone has alerted their local commissioners to the bill), but some of that might be negotiable.

I've been told that prosecutors are not the target of the bill -- the target are judges who aren't following the current law on warnings, etc., and are forcing pro se defendants to talk to prosecutors before giving them their constitutional warnings and allowing them to ask for a court-appointed lawyer. If that's the intent, could it be addressed in other ways that would not impose more costs and delays?

quote:

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I've been told that prosecutors are not the target of the bill -- the target are judges who aren't following the current law on warnings, etc., and are forcing pro se defendants to talk to prosecutors before giving them their constitutional warnings and allowing them to ask for a court-appointed lawyer. If that's the intent, could it be addressed in other ways that would not impose more costs and delays?
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Seems the judicial commission could address that by taking action as needed.
Most judges handle it properly, then the defendants who do not request attorneys call my office or stop by to work out a plea. This orderly process has worked well in counties where the judges are following the law.
Out of curiosity, what are these rogue judges doing to "force" defendants to have discussions with prosecutors?

quote:

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Originally posted by Mark Pratt:

Seems the judicial commission could address that by taking action as needed.

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That's an interesting point. Anyone have any experience with them on something like this?

quote:

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Originally posted by Mark Pratt:

Most judges handle it properly, then the defendants who do not request attorneys call my office or stop by to work out a plea. This orderly process has worked well in counties where the judges are following the law.

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Right. Agreed. But they're after places where judges don't follow the law (although I can't answer the "how" part of your question). So, assuming they trot out evidence of judges not doing things correctly, that puts the ball in the court of those who don't want change. Hence, this reason for my questions.

HB 1178 just got set for a hearing in the House Criminal Jurisprudence Committee on Tuesday, February 27, at 2pm in Room E2.016. Anyone wishing to be heard on the issue should come to Austin. If you need assistance, contact me at TDCAA.

It is my understanding that there may be a committee subsitute of the bill, the contents of which will not be available until the hearing.

Also, if any of you would like to talk directly to the advocates for this bill, call or email me and I will put you in touch with them.

[This message was edited by Shannon Edmonds on 02-23-07 at .]