Monday, May 21, 2007

Ex-prosecutor: Counsel waivers good for 'judicial economy' but not justice

"Do rights matter if you don't know about them?," asks Robert Guest, a criminal defense attorney in Kaufman County and former prosecutor at I Was The State.

Guest explains from first-hand experience why Texas defendants need the protections in HB 1178, which would disallow prosecutors from solciting waivers of defendants' right to counsel. He writes:
HB 1178 [by Escobar] would ensure that no defendant pleads guilty without signing a waiver of his right to an attorney. It ends the practice of prosecutors plea bargaining with pro se defendants. Prosecutors are not excited about 1178. See the TDCAA discussion.

Their main complaints about 1178 are 1) It will take more time and 2) They feel insulted that anyone would think a Texas prosecutor is only out to convict, not to see that justice is done.

I was a DA and worked with a written waiver process that complies with the statute. It worked great. The judge asked each defendant if he wanted to hire a lawyer, fill out a pauper's oath, or talk to me and sign a waiver.

90% would sign the waiver. Out of those I could get 90% to plead guilty and accept my plea offer. If you are a lawyer you can always convince someone with less than a high school education to take a plea bargain. It's not hard.

Defendant's want the process to end so the do not have to keep coming back to court or go try and hire an attorney. The process of being a defendant is more stressful than probation for many.

Quick pleas are great for judicial economy, not for justice. Criminal charges carry serious consequences. From DWI to POM a guilty plea can affect your life forever. Anyone should be allowed to plead guilty if they make an informed decision. But the huge disparitiy in education and experience between a pro se defendant and a prosecutor creates a situation ripe for abuse. HB 1178 is a step in the right direction.
Guest says cases with defense lawyers take longer because they actually be able to explain things like:
Why a stop is illegal;
Why the state's witness won't hold up at trial;
Why the state's plea offer may be bad;
Why the defendant needs to pay us before the next court date
Hmmmm. Yeah, I can see why prosecutors wouldn't like that - that's pretty important stuff in a criminal prosecution!

This shouldn't be a radical notion, but as Guest notes Texas prosecutors strongly oppose it, which makes me think the practice must be more widespread than I thought. Despite DA's opposition, the bill passed both chambers of the Legislature and is already headed to the Governor. As always, the Texas Criminal Justice Coalition has more information on the topic, and you can also:

7 comments:

whitsfoe said...

This is an excellent step in the right direction. Gov. Perry needs to sign this one and not veto it like he does so many. This is very encouraging.

Anonymous said...

Bill 1178 is a huge step in the right direction. People are so used to having their rights taken away by prosecutors the process of you are innocent until proven guilty has nearly eroded. The DAs need to stay out of the process and not be allowed to discuss this at all with the person whose life is at stake. DAs have far too much power and the only thing they care about is winning.

The Constitution is real and not what our President called it. He is wrong, so wrong. I urge Gov. Perry to do what is right and sign this bill. Everyone is entitled to a court trial if that is what they chose and no DA or lawyer for that matter has the right to make this choice for anyone. All the lawyers want is the money and all the DAs want is to win and go on to the next case, to get a conviction no matter how they get it, always helps them to get re-elected. Our justice system has gone to a near Communist state and it is time we put a stop to what is happening. The DAs need to stay out of Austin, let the elected Congress make the decisons and stop trying to influence them to get your way. As you can tell DAs are not my favorite people and neither are Judges. They seem to all be corrupt and they get together with the defense lawyer, Judge and DA and decide what is going to transpire. I have witnessed this in person and this is terrible and speaks poorly of our justice sytem.

Anonymous said...

It is indeed all about money. The Judge, DA and Defense Attorney do get together and decide the fate of anyone arrested. Do not get arrested, that is the only way to experience real justice!

If you do get arrested, get an attorney, listen to what he has to say and then study the law related to your own case. Do your own investigation of the facts. Make sure your attorney is working for you by asking what exactly has been done. Ask what motions have been filed, read everything completely.

Do not make a hasty decision and do not talk to the Police, DA or anyone associated with the State. No matter what!

Now your chance of benefiting from due process is at least improved if not perfect! Everyone deserves a lawyer every time there is a criminal action and everyone needs to know about their rights.

Anonymous said...

As someone who has tracked this bill closely during the session, I don’t think it’s accurate to say that prosecutors, as a group, are strongly opposed to HB 1178 in its current form.

Many counties already follow procedures that comply with HB 1178, and I don’t think that prosecutors in those counties ever expressed opposition to the bill. Also, the TDCAA discussion thread you linked to is several months old. Since then, several changes have been made to the bill in order to address concerns raised by prosecutors and other county officials.

As Mr. Guest’s personal experience suggests, it is likely that many defendants still will choose to proceed without counsel in county systems that comply with HB 1178. The resulting plea deals may or may not be “better” than the resolution that would have been reached if they had been represented by counsel, and may or may not trigger collateral consequences that the defendant did not fully understand and could have avoided.

But if Gov. Perry allows HB 1178 to become law, defendants who do want the assistance of counsel at least will have a chance to request counsel and obtain a ruling on their request before they are steered into uncounseled plea negotiations. It seems like a small and obvious protection, but one that defendants in some Texas counties don’t have right now.

Anonymous said...

Prosecutors should have no say in the bills passed by the Legislature. They should stay at home and tend to their own business.

Their job becomes easy if they do not have to have a trial and from what I have witnessed this is tried in every case, unless it is a high profile case and will benefit them in their re-election bid.

Our system is so corrupt, we should be ashamed and everyone who holds the office of DA should be required to have term limits, as should the Speaker of the House.

Lawyers love it when they can get a deal, they still get paid and lets face it, that is all they are after. The DAs just want to win to make themselves look good for the next election.

The Advocate said...

Doesn't this bill violate the equal protection under the law clauses of the Constitution?

It differentiates between an indigent defendant and a non-indigent defendant.

Can a death penalty defendant waive his right to counsel?

Is the process of waiving the same for a death penalty defendant and a minimum felony defendant?

A misdemeanor defendant?

Will this lead to a "raising of the bar" (qualifying process / standards) for indigence status.

IMO the target of this bill is the defendant who see saws on hiring an attorney and a stalling of the case by not "hiring an attorney yet".

Anonymous said...

To anomyous:

So......if you have an attorney it is ok for them to delay the process.....if the prosecution wants to dealy the process, that's ok too.

If a defendant wants to delay the process it is ok to "target" them?

Your argument doesn't make sense in the context of how things really work. If anyone's right to an attorney is usurped, we all suffer!