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ABA: Tennessee Court Violates Misdemeanants Right to Counsel

by David Reutter

At the request of the American Bar Association (ABA) Section of Civil Rights and Social Justice, Arch City Defenders of St. Louis conducted a court watching program of Tennessee's Davison County General Sessions Criminal Court in Nashville. The observers found an "extremely serious and pervasive problem that can no longer be ignored or tolerated."

The court watchers observed proceedings in Court 1A and 3A on September 12, 2016. Court 1A processed 30,215 defendants on misdemeanor citations in 2016; over 2015 and 2016, 805 of those defendants were not represented by a lawyer when their charges were resolved.

The observers watched as defendants were booked, photographed, and fingerprinted in a room across the hall from Court 1A. When they arrived in the courtroom, there was no judge or public offender. A prosecutor, however, was present, and she announced that anyone who wished to plead guilty should approach her as she read the defendants' names.

As defendants approached her, the prosecutor offered suspended sentence with various other conditions that ranged from a fine to a class. The offers were made to multiple groups with the same crime, and when they accepted the offer the court would accept the pleas on mass. At no point did either the court of prosecutor ask if the defendants had an attorney to inquire into whether they understood the consequences of the plea.

A consequence was typically a fine, and the court never inquired if the defendant could afford the fine. The standard affidavit of indigency was not offered, and a clerk said it could only be obtained by asking for it. The form was available only to persons who knew it existed."

"Defendants somehow have to know to request the indigency affidavit form, which apparently is not readily available in the courtroom," the report said. "This strongly suggests the General Sessions Court prefers defendants not complete the affidavit form regarding their financial status, thereby maximizing the amount of revenue collected."

Imposing fines without inquiring into defendants' financial status has dire consequences for the poor. A woman who rejected a plea offer said it was her fifth time before the court. Prior fines left her unable to afford reinstatement of her driver's license and care for her three children and a disabled grandmother on her 1,200 a month income. Her experience finally led her to the indigency affidavit available in the clerk's office.

The report found "a coercive atmosphere pervades court 1A," as the "prosecutor's obvious goal is to arrange for defendants to plead guilty." Then, "Judges did not address defendants personally, ask questions of defendants or make individual determinations of whether defendants' waivers of legal representation were voluntary, knowing, and intellectual."

The ABA's report noted violations of ethical and judicial rules. These problems, sadly, go well beyond Tennessee.

"The Supreme Court's Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day." Rep. Senator Charles Grassley, Chair of the Senate Judiciary Committee, said in a statement, "No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long."

The ABA aims to change that situation. It said it "is committed to revealing the kinds of violations discussed in th[e] report, and we are determined to investigate others jurisdictions and expose the abuses that are found."

Source: Denial of Right to Counsel in Misdemeanor Cases: Court Watching in Nashville, Tennessee, American Bar Association, Section on Civil Rights and Social Justice.

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