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Misdemeanor Defendants Facing Jail Time Not Told They Have a Right to Counsel, Bar Association Finds

by Topher Sanders, ProPublica

American Bar Association monitors report misdemeanor defendants in Nashville often aren’t told they are entitled to a lawyer even when their charges mean they could end up behind bars.

Later that day in September 2016, a group of five defendants was called up by a local prosecutor and offered the previously arranged plea deals, some of which might have resulted in days behind bars. One defendant asked to see a judge. The prosecutor said that was not possible, and that her only choice at that moment was to plead guilty, or to plead not guilty and go to trial. The defendant could only speak to the judge, the prosecutor said, if she rejected the plea offer. Again, none of the defendants was told they had the right to see a lawyer before entering any plea.The defendants were booked, photographed, fingerprinted and then led into Court 1A in the county courthouse in Nashville. There was no judge. Prosecutors handling the misdemeanor cases invited the accused who were interested in pleading guilty to step forward and finalized plea deals for suspended sentences and an array of fines. There were no defense lawyers, nor were any of the defendants advised they were entitled to one.

The scenes in Nashville’s Court 1A last year are included in an American Bar Association report examining what the organization sees as one of the most routine constitutional violations taking place in U.S. courts every day: the failure to notify indigent defendants facing misdemeanor charges that can carry jail time that they are entitled to a lawyer. The report, done by the association’s section on civil rights and social justice, was approved and released by the ABA’s board Friday afternoon.

The report’s authors declined to comment on the ABA effort, saying that the document speaks for itself.

“Volunteer lawyers repeatedly observed both judges and prosecutors violate indigent defendants’ right to counsel under Tennessee law,” the report states.

Nashville District Attorney Glenn Funk did not reply to an inquiry sent to his office seeking comment on the report.

The ABA report said the lack of counsel for defendants facing misdemeanor charges punishable with time behind bars is “an extremely serious and pervasive problem that can no longer be ignored or tolerated.”

The report points to a number of studies in recent years that had begun to better document the problem, including work the ABA had done in several states in 2006. “There is a shocking disconnect between the system of justice envisioned by the Supreme Court’s right-to-counsel decisions and what actually occurs in many of this nation’s misdemeanor courts,” it says.

The report cites two Supreme Court decisions in establishing that many of those charged with misdemeanors are entitled to a lawyer. A 1972 case said that such lawyers were required even in misdemeanor cases, absent a “valid waiver of counsel” by the defendant. Thirty years later, the report stated, the court made clear that defendants being offered suspended sentences — deals that spare defendants immediate imprisonment so long as they meet certain conditions — were also due representation by a lawyer.

In Nashville, the ABA had volunteer lawyers spend Sept. 12, 2016, in Davidson County General Sessions Court. The ABA described the effort as the launch of a national project to “review practices in misdemeanor courts in other states throughout the country.” In Tennessee, there are state provisions that make explicit the right to a lawyer, even for those facing misdemeanor charges.

The defendants in the courtrooms monitored by the ABA were typically facing minor drug charges or driving with suspended licenses, offenses that could result in jail time. The report describes an assembly-line atmosphere, done almost entirely without the presence of defense lawyers.

When a judge did turn up in Court 1A, she merely confirmed with the court clerk that plea deals had been signed, according to the report.

“The judge did not inquire whether the defendants understood the plea agreement or its consequences; did not inform defendants of their right to counsel and to a trial; and did not ask if defendants were waiving any of their rights,” the report states. “After accepting the pleas, the judge announced that she would return to the bench after the clerk had seven more pleas prepared. During the morning’s court session, this process was repeated several times.”

Joseph Ozment, president of the Tennessee Association of Criminal Defense Lawyers, said the prosecutors are not looking out for the defendant’s rights. Ozment also blamed the judges overseeing the cases.

“I think it’s an ethical conflict for the district attorney, I think they’re putting themselves in a position of representing a defendant when they start advising them of rights,” he said. “The trouble is that the judges let this practice go on. There’s a judge in that courtroom that can say, ‘No, I’m not allowing you to do this.’ Why the judges are allowing this is more troubling than the fact that the district attorney is doing it.”

Ozment said judges may allow the practice to lower their caseload and to dispose of cases quickly.

“I think it’s a situation where a judge is more concerned with the number of cases in his courtroom than making sure that the prosecutor is doing their job and the defendant’s rights are protected.”

Presiding Judge Gale Robinson in Nashville did not respond to a request for comment sent to him Friday through the state’s Administrative Office of the Courts.

The report also states that the ABA’s observers did not see the prosecutor inform defendants that there is a waiver process if they couldn’t afford to pay fees or fines.

The ABA lawyers spoke in detail with the woman who asked to see the judge and rejected a plea deal.

“She was a single black woman, age 37, with three children, ages 14, 10, and 8,” the report states. “Her disabled grandmother also lived with her. She worked two jobs to take care of her family and brought home just under $1200 monthly. After paying rent of $715, she had very little left to meet everyone’s needs. She reported having been to Court 1A five times in the past two years, facing charges of driving on a suspended license. Each time, her experience was the same. She was assessed a fine she could not afford and, for this reason, she was unable to get her license reinstated.”

A court bailiff overheard the ABA lawyers talking with the defendant. The bailiff then informed the defendant that she could go to the clerk’s office on a different floor of the courthouse and ask for a waiver that might lower the amount of the fine. The defendant told the ABA lawyers that during her previous appearances in Nashville’s courts, she was never told about the form even after telling the court she couldn’t pay the fines.

Several ABA observers then went to the clerk’s office to obtain about a dozen of the forms to make them available in Court 1A.

“The clerk replied she was only permitted to hand out one copy, and people who needed them had to request them from her directly,” the report states. “When the observers asked how defendants were supposed to know that these forms existed, she replied they would have to know they existed in order to request them.”

Nashville’s Clerk of Courts, Howard Gentry, did not respond to an inquiry for comment on the report’s findings. 

This article was originally published by ProPublica on August 14, 2017; reprinted under Creative Commons license.

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