January 2004

The Right to Counsel: Every Accused Person's Right

by Robert C. Boruchowitz

Every day in Washington courts, hundreds of people face criminal charges without lawyers, and many of them plead guilty and go to jail, sometimes unaware they have a right to a lawyer.

Forty years ago, in Gideon v. Wainwright, the U.S. Supreme Court said accused persons in state courts were entitled to court-appointed lawyers. Over 30 years have passed since the Court applied that right to misdemeanor cases in state courts in Argersinger v. Hamlin. Yet the holdings of those cases are frequently ignored.

The scope of the problem is enormous. In Washington's limited jurisdiction courts in 2002, there were 272,548 arraignments on 357,954 charges in 300,442 complaints and citations. There were only 9,349 trials. 167,563 charges resulted in a guilty finding. This article will review the law, demonstrate examples of the failure to follow court rules, outline how some courts manage to enforce the right to counsel, and discuss changes which some courts have made and others could make to ensure the integrity of the courts in which hundreds of thousands of people are heard every year.

Courts Across the State Violate the Right to Counsel
During my observations as a Soros senior fellow this past year, I documented violations of the right to counsel in three of the largest counties in the state and in one rural one. These problems occur in affluent suburban areas as well as in large cities.

• I have seen a judge continue a video arraignment for an in-custody Spanish-speaking defendant for four days because an interpreter was not available, keeping the bail at $3,000.

• I have seen a prosecutor advise the defendants that it would be in the defendants' interest to discuss their cases with the prosecutor, who would let them know if he felt that they needed an attorney, all before the judge entered the courtroom (that prosecutor agreed when I asked him to alter that speech and since then has made efforts to help protect the right to counsel).

• I have seen two courts in which prosecutors approached unrepresented, shackled defendants to discuss pleas with them. Negotiating directly with un-counseled defendants violates American Bar Association Prosecution Function Standard 3-3.10 Role in First Appearance and Preliminary Hearing:

 (a)  A prosecutor . . . should not communicate with the accused unless a waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel or in arranging for the pretrial release of the accused. A prosecutor should not fail to make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.

• Some judges order cash-only bail, perhaps because they want to make sure the accused person does not get released. This is a violation of City of Yakima v. Mollett, 63 P.3d 177 (2003), in which Division III held that the rule does not permit cash-only bail.

• I have seen two judges in Spokane advise defendants of their rights, including right to jury and right to call witnesses, and never mention the right to have a lawyer.

• In a Kittitas County court, a judge routinely denies counsel for college students, saying that "there is a limit to the definition of indigent contained in RCW 10.101.010(e); that limit is reached when an able-bodied, employable young person with no dependents and virtually no debt chooses to forgo available employment so that he can attain a college degree." That view of indigence is totally unsupported by the statute and is at odds with case law. In that case, the defendant had an annual income of $3,600, which is well below the federal poverty guidelines.

• I helped get a client out of jail whose entire probation revocation hearing occupied two-and-a-half pages of transcript. The judge never advised the defendant of his right to an attorney, and when the defendant asked what was going on, the judge told him he was going to jail in Yakima for three years.

• One woman in a Snohomish County municipal court stipulated to facts sufficient to convict her, and received a suspended jail sentence, a $500 fine, and a conviction on her record, all without the advice of counsel and without waiving that right. The judge did not inquire whether she knew she had rights to waive. In the arraignment, stipulation, and sentencing, all of which together lasted one minute and 47 seconds, the judge's only question concerning the defendant's understanding of her right to counsel was, "Have you had a chance to talk with a defense lawyer about [the stipulation]?" to which she answered, "Yes I have." Yet the accused appeared in court without an attorney; she was unrepresented. There was no indication that she had ever spoken with a defense attorney.
 
Despite the existence of strong public-defender programs, and able individual assigned counsel and contract defenders in Washington, there are many cities and counties where the lawyers are totally overwhelmed by crushing caseloads; lack investigator or social-work support; lack adequate office space, equipment, or research capacity; or lack the experience or training to handle the cases they are assigned. Often, they are coping with their caseloads, but do not have the resources to send lawyers to arraignment hearings.

• Some courts try to recognize defendants' rights without providing counsel. In district court in Redmond, the judge begins arraignment with a lengthy explanation of the defendant's rights, and he offers his opinion that if defendants wish to plead guilty at arraignment, they are better off doing so after speaking with an attorney. The court admonishes defendants to plead not guilty and seek advice of counsel. Yet there is no lawyer present for those who want one at that time.

• On its website, Redmond Municipal Court advises people that to have a public defender, they should apply "immediately after arraignment," implying that having a defender at arraignment is not possible. The website also includes information on where to go "to pay for my Public Defender," which could discourage and confuse defendants.

• In a King County municipal court, an in-custody defendant told the judge that his lawyer was not able to come that day. The judge said the lawyer could attend later proceedings, and demanded to know whether the defendant would represent himself at the plea he was about to enter. The defendant said he had no choice, as he needed to get out of jail, and pled guilty. I worked with the defendant's lawyer on a successful motion to set aside the plea.

In many courts, there is a culture that accepts the routine denial of counsel in order to facilitate the rapid movement of cases through a calendar, what John Cleary of the San Diego Federal Defender used to call the "Rawhide!" style of justice.

This must change.

Juvenile Cases Are Affected, Too
The problem is not limited to adults. In at least one Eastern Washington county, juveniles often plead guilty without counsel. One probation officer told me that about half of the children facing incarceration for truancy-contempt charges go to court without a lawyer.

An ABA report released last October on six states' juvenile justice programs (including Washington's) found that "[m]any youths do not have counsel at critical stages of the juvenile justice process, despite the law's clear mandate and the harmful consequences of not having a lawyer." The Washington segment reported: "In Washington state, children are represented by counsel at most juvenile court proceedings. However, some counties do not ever provide counsel at probable-cause hearings, and, in some counties, young people go forward in a variety of hearings without the assistance of counsel."

The Washington report recommended that children should be represented by effective counsel at all court hearings, and that Washington law should be changed to conform to national standards prohibiting children from waiving the right to counsel. Until the law is changed, the report recommended, "The judicial inquiry with youth regarding their decisions to waive counsel should be thorough, comprehensive, and easily understood." As one law review put it, "No doubt the denial of counsel comes as a jolt to most Americans, including the legal profession, who share the mistaken belief that every accused person currently receives the benefits of a lawyer's advocacy when liberty is threatened."1And given the collateral consequences of a conviction, including preclusion from certain jobs and benefits, as well as the prospect of incarceration, "[m]aking an indigent — and perhaps addicted, mentally impaired, uneducated or illiterate — person plead guilty without some effort to convey this complex raft of consequences, seems almost sadistic — whatever the cost."2

In some courts, there is no prosecutor at all, and the courts take pleas without written plea forms. In some courts, the defendants are in jail on video, and the judge is blocks or miles away in an empty courtroom. In some courts, the judges advise the defendants of their rights but never mention that there is a right to counsel at arraignment. In some courts that do use plea forms, the prosecutor fills them out in a conference with the unrepresented defendant. As Justice Black wrote in 1948 in Von Moltke v. Gillies, "The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be."

Federal constitutional law, Washington case law, and Washington court rules all require counsel to be available for people who cannot hire their own, and require judges to make a thorough inquiry before accepting a waiver of rights.

The Right to Counsel Is Guaranteed
As noted earlier, people charged with misdemeanors are entitled to counsel and may not be imprisoned for a misdemeanor unless they had counsel or knowingly, voluntarily, and intelligently waived counsel. The 9th Circuit has held that "in order to knowingly and intelligently waive the right to counsel, the defendant must be made aware of (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation." U.S. v. Akins, 276 F.3d 1141, 1144 (9th Cir. 2002) (amended opinion, citations omitted). The court noted that a threat to the accuracy of a guilty plea entered without the assistance of counsel is the danger that "innocent men pitted against trained prosecutorial forces may waive counsel and plead guilty to crimes they have not committed, if they think that by doing so they will avoid the publicity of trial, secure a break at the sentencing stage, or simply get the whole thing over with."

In October 2003, the 9th Circuit held that if the right to counsel has not been effectively waived, the defendant is entitled to an automatic reversal of the conviction.
 
Washington court rules are clear that a lawyer needs to be provided. CrRLJ 3.1 states:

(2) A lawyer shall be provided at every critical stage of the proceedings.

(d) Assignment of Lawyer.

(1) Unless waived, a lawyer shall be provided to any person who is financially unable to obtain one without causing substantial hardship to the person or to the person's family.

CrRLJ 4.1(a)(2) provides, "The defendant shall not be required to plead to the complaint or the citation and notice until he or she shall have had a reasonable time to examine it and to consult with a lawyer, if requested."

The implications of that language, as well as the following paragraph (3) of CrRLJ 4.1, require the availability and appointment of counsel:

(3) Advisement. At arraignment, unless the defendant appears with a lawyer, the court shall advise the defendant on the record:
 
(ii) of the right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one.
 The rule requires that appointed counsel be available for arraignment.

The rule on probation reviews requires the same. CrRLJ7.6(b) states, "The defendant is entitled to be represented by a lawyer . . . . A lawyer shall be appointed for a defendant financially unable to obtain one."

Unfortunately, in many courts no public defender is available and the judge does not conduct the thorough inquiry the case law contemplates to support a valid waiver.

In one King County municipal court I observed, the waiver colloquy took 42 seconds. In State v. Chavis (1982), the court of appeals said the court should question the accused in a manner designed to reveal understanding, rather than framing questions that call for a simple "yes" or "no" response.

Washington case law is clear that a court must accept a waiver of counsel only after a thorough inquiry. The court in Chavis held that "the accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the accused's comprehension of the offer and capacity to make the choice intelligently and understandably has been made."

Other cases have held that the defendant's request to proceed pro se must be unequivocal. The court must establish that the defendant, in choosing to proceed pro se, makes a knowing and intelligent waiver of the right to counsel. The court must determine that the defendant is competent and aware of the dangers and disadvantages of waiving his or her right to counsel. The defendant must be advised of the disadvantages of proceeding pro se. And the court must indulge every reasonable presumption against waiver.

In Von Moltke, the plurality opinion held that the right to counsel invokes "[t]he protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel." This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid, such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered . . . . A mere routine inquiry — the asking of several standard questions followed by the signing of a standard written waiver of counsel — may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel."

The Von Moltke case is of particular relevance today, as it involved accusations of collaboration with the enemy during wartime. No one imagined that a defendant so accused could be held without counsel or charges. And the Court wrote about the Sixth Amendment provision of legal services to such a defendant: "And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be a member of an unpopular or hated group, or may be charged with an offense which is peculiarly abhorrent."

Lawyers Make a Difference
During my fellowship, I worked on several cases involving guilty pleas or probation revocations without counsel. In each case, the involvement of a lawyer produced a more favorable result for the defendant, and in several cases also saved the local government thousands of dollars in jail costs when the judge released the defendant months or years earlier than had been ordered at a hearing without counsel.

A pilot project in Baltimore found the same results on a systematic basis. The "Lawyers at Bail Project" concluded that having a lawyer present at a bail hearing to provide more accurate and complete information has far-reaching consequences. The accused is considerably more likely to be released, to respect the system and comply with orders, to keep his job and his home, and to help prepare a meaningful defense. The public at large benefits too, from the unclogging of congested court systems and overcrowded jails and the resulting saving in taxpayer dollars.

Judges Face Discipline for Not Honoring Right to Counsel
In recent years, the Washington State Commission on Judicial Conduct began to discipline judges who ignore their obligations regarding counsel.

One municipal court judge, after being suspended by the Supreme Court, again was charged with misconduct. This included not advising defendants of their rights, consistently failing to advise defendants that they have a right to counsel, requiring defendants who pleaded not guilty to waive their right to counsel and to jury trial, and failing to appoint counsel. The judge stipulated to his ineligibility to hold office.

In In re Hammermaster, the Supreme Court's majority wrote:

For most citizens, appearing as witnesses, spectators, or defendants in municipal court is their only contact with the judicial system . . . . The impressions which individuals involved in court proceedings receive help form their opinion of our justice system . . . . People appearing pro se and without legal training are the ones least able to defend themselves against rude, intimidating, or incompetent judges. The conduct here denigrates the public view of municipal courts as places of justice.

The Washington State Supreme Court recently disciplined a judge for violating the basic responsibility to make sure eligible people have counsel. A local judge was acting as judge in cases involving defendants whom he had represented as the public defender. The court stressed several times that it would not tolerate shortcuts to due process. It emphasized the rights of an accused person and said, "Most fundamental of these rights include the right to an attorney and the right to be advised of your rights in a way to be able to make informed decisions regarding your case." The court condemned the judge's actions in 12 cases in which he pressed the defendant to proceed without a lawyer or go back to jail.

That decision, In re Michels, referred to Hammermaster, emphasizing, "we recognized that all courts must provide equal justice, regardless of size and situation." The court pointed out, "Courts of limited jurisdiction serve as the window to the judicial branch for many people who do not normally have contact with the judicial system."

The Court concluded: "The rights of the poor and indigent are the rights that often need the most protection. Each county or city operating a criminal court holds the responsibility of adopting certain standards for the delivery of public defense services, with the most basic right being that counsel shall be provided."

Alternatives
What can be done? In Seattle Municipal Court, there are defenders at arraignment six days a week. They are able to challenge probable cause, argue for personal recognizance release or low bail, and advise the clients on the advantages and disadvantages of plea offers from the city prosecutor. The defenders meet with their clients before appearing in front of the judge, negotiate pleas with prosecutors, and advocate for less-restrictive conditions of release after pleas of not guilty. It is not ideal, because while the defenders can review the police reports and negotiate with the prosecutor, there is no time to investigate the case or to do research that could inform a plea decision. But they are able to advise clients and to help get the best possible resolution for those defendants who want to resolve the case that day.

In Snohomish County, I met with judges, prosecutors, and defenders, and they agreed to end video arraignments. They found funds for a pilot program for defenders and prosecutors to be present at arraignment. The court consolidated calendars so that lawyers would have fewer hearings to attend. The report from the lawyers who have participated is that they are providing an invaluable service to the accused, and that their presence is essential to ensure that justice is served.

According to Public Defender Bill Jaquette, people coming before the court simply do not understand the possible consequences of being accused of a crime or of the rights they have in dealing with those accusations. Because the prosecutor is there, willing to make some plea offers, some cases can be resolved at their inception, avoiding subsequent court hearings and unnecessary jail time. The court saves time because the occasions where it has to permit withdrawal of an un-counseled guilty plea or waiver of jury are eliminated.

After I wrote a letter to Auburn Municipal Court, the judge changed the court's website to make it clear that counsel could be requested before, not just after, arraignment, and he has asked the city government to provide public defenders at arraignment. The judge decided not to accept guilty pleas without counsel available. He is considering establishing a diversion program.  

In Spokane, I met with some judges, prosecutors, and defenders who agreed to try to reschedule and consolidate Driving While License Suspended (DWLS) 3 cases in one court, with the goal of sending as many as possible to a relicensing program. This would reduce pressure on other courts, and could reduce the number of DWLS 3 cases assigned to the defenders. That would free up resources to be able to provide lawyers at arraignment.

In every court system, there are cases that can be diverted. Often the prosecutors don't review the police reports before complaints are filed. When they do read them, they often dismiss the cases or offer resolutions with lesser charges. If they reviewed them in advance, they could save resources. In juvenile court, greater use of diversion and alternatives to truancy prosecutions would reduce caseloads.

Defenders are in a good position to address the routine denial of counsel to defendants in misdemeanor courts with their local prosecutors and judges. When lack of resources is raised as a defense, there are two answers. First, lack of resources does not excuse complying with constitutional rights and rule requirements. Second, diverting cases, primarily DWLS 3 cases, would save more than enough money to fund lawyers at arraignments and probation hearings. DWLS 3 cases constitute as much as one-third of misdemeanor court cases. In the first eight months of 2003, there were 28,221 DUI filings in courts of limited jurisdiction, 85,276 "other traffic" offense filings, and 92,314 "non-traffic" offense filings.

Seattle Municipal Court has a relicensing program, which has netted the city money in formerly unpaid traffic fines, while helping people to get back their licenses and avoid further DWLS tickets.

King County District Court has a diversion plan for DWLS 3, which was developed by defenders and prosecutors working with the court and county government. It has saved hundreds of thousands of dollars a year in defender costs, jail costs, and court costs, and helped people to get their licenses. In 2002, the King County District Court launched a full-service relicensing program for defendants charged with DWLS 3 and No Valid Operator's License. Instead of filing charges, the Prosecutor's Office invites individuals to appear in court. If people appear in court, a variety of options are made available to them. They can have their previous fines and violations mitigated by the judge and pay them in full; have a payment plan developed by service providers present in the courtroom; or agree to do work crew or community service, which pay $150 per day or $10 per hour, respectively, toward the violations. If the payment plan is chosen, holds on the individual's license are removed as soon as the first payment is made.

Although as many as half of the defendants who receive invitations fail to appear, the relicensing system also allows for walk-in participants. This is perhaps the most accurate indication of the program's success in the community. On one recent day, the walk-in courtroom for relicensing at the King County District Court in Burien was filled to capacity. The program has had to cap the number of walk-ins. Not only are people spreading the word that fines are significantly reduced, but also there is none of the intimidation and fear that can surround normal court appearances. The relicensing coordinator calmly and clearly explains the program, there are no prosecutors present, and once the judge takes the bench and begins to mitigate fines, it becomes clear that the program's goal is to make fines more manageable and get people relicensed.

Thousands of jail days are saved because fewer people are held for DWLS 3 violations, attorney hours are saved for the prosecutor and the public defender, the underlying problem of the DWLS violations is addressed, and hundreds of participants regain their driving privileges.

Another alternative would be to decriminalize some minor offenses, including DWLS 3 for people whose licenses are suspended only for failing to pay tickets. That part of DWLS is a relatively recent statutory change. The King County Regional Justice Summit, sponsored by law enforcement officials last October, included decriminalization as one of seven priority areas in which to develop solutions.

Conclusion  
Counsel must be provided to eligible Washington defendants. If a case is important enough to prosecute, it is important enough to provide counsel and due process. Courts should not take pleas from unrepresented defendants without thorough inquiries into their waiver of their right to counsel. Prosecutors should not discourage people from exercising their right to a lawyer, and they should not be negotiating pleas with unrepresented, shackled defendants. Local governments must meet their obligations to pay for counsel.

And defense lawyers, judges, and prosecutors must not look the other way from these practices, which sacrifice individual rights and basic fairness.

Robert C. Boruchowitz is director of The Defender Association, past president of the Washington Defender Association, and a 2003 Soros senior fellow. Ben Goldsmith, a third-year student at the University of Michigan School of Law, assisted with research for this article.

NOTES
1 Colbert, et. al., Do Lawyers Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo Law Review 1719, 1782-1783 (2002).
2 Wallace, Remarks at Indigent Defense Symposium (2002); http://www.nlada.org/DMS/Documents/1046801534.62/Georgia%20Indigent%20Defense%20Symposium,%20Remarks%20of%20Scott%20Walla%85.pdf.

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