Sunday, February 08, 2015

West Texas indigent defense: A Nolan County case study

An infrequent poster on the Texas prosecutor association user forum offered up the following question on February 5:
Our newly-elected county court at law judge does not want to continue the former judge's practice of giving an admonishment sheet to all unrepresented defendant on court days, advising them of their right to counsel before allowing them to talk to the prosecutors, as per CCP 1.051. Our prosecutors have taken the position that the law does not allow us to talk to unrepresented defendants unless they have received these admonishments, so we seem to be at an impasse. Any thoughts on how to get around this?
No way to tell who the judge in question is or what county she's from. Forum regular Martin Peterson responded that:
1.051 (f-1) prohibits communication only "with a defendant who has requested the appointment of counsel." (f-2) requires an admonishment by the judge only if the judge determines to "direct or encourage the defendant to communicate with the attorney representing the state." If a defendant has not requested appointed counsel, has not retained counsel, and comes to the prosecutor without any encouragement from the court, you are not legally prohibited from discussing the case with the defendant by 1.051. But see comment 4 to Discip. Rule 3.09. Your judge, however, may not to be following Oliver, 872 S.W.2d 713,716 which establishes: "The appearance of a criminal defendant in court without counsel, therefore, necessitates an examination by the trial judge to assure that the defendant is actually aware of his right to retain an attorney and to discover whether he intends to do so." But, I guess your judge might be able to validly assume that this responsibility has already been satisfied under art. 15.17(a).
But TDCAA staffer Shannon Edmonds was more succinct: "If your new CCAL judge wants to get sued or wants to jeopardize your county's funding (if any) from the Indigent Defense Commission, then she should stick to her guns. If she wants to avoid those headaches, then she should listen to you." That seems like sound advice.

In the meantime, though, Grits was fascinated by the response from forum regular Nolan County Attorney Lisa Peterson:
We have a form which is a waiver of rights for 24 hours - it is handed out by the court coordinator on our "Wild Wednesday" (aka cattle call). After completing it, each defendant is called to the bench and offered the chance to come talk to me. We also have "stand by" defense counsel available for general "they didn't read me my rights" type questions. (they actually talk many out of court appointed attorneys).

If the defendant is incarcerated, the magistrate has a form in which they request that the prosecutor come visit with them about the case OR they request appointed counsel...
That's quite an indigent defense system: The judge assists with coercing a waiver of counsel from defendants while a "stand by" defense counsel sits by to "talk many [defendants] out of court appointed attorneys." If they don't sign the waiver then the case isn't set and the defendant goes back to jail. Good Lord! What kind of self respecting criminal defense lawyer signs up for that "stand by" counsel job?


Jefe said...

Any system that gives the defendant a choice to talk to the prosecutor now or wait for an appointed lawyer later is coercive and illegal.

Anonymous said...

Sickening. How any licensed attorney on either side can perpetuate this is beyond belief. All involved should be disbarred.

Linda said...

I may be missing the point all together, but what is the difference between this and the court appointed lawyer telling the client that they will kill him if he doesn't plea bargain, without providing any evidence. Or the Detectives telling the suspect that they have all this evidence and tricking him into pleading guilty so he could go home. The suspect was 20 years old and had no memory of committing any crime due to alcohol and drug intoxication

dfisher said...

Nothing Lisa Peterson of Nolan CO says about indigent defendants rights surprises me after reading her 2011 post, wherein be says her daughter, a public defender, is a untruthful profession and the earning a filthy lucre.

A true Mommie Dearest!

Post on the TDCAA, Forms.

Lisa Peterson

posted June 23, 2011 14:30 Hide Post
Defense counsel at the trial level was my niece - been trying to lure her from filthy lucre to the side of truth and right for nearly 15 years. She's a state public defender in the Four Corners area. Their office farms appeallate work out, so she wasn't involved in that - but, much as I hate to say - it was a pretty neat piece of lawyering at the trial level!

Lisa L. Peterson
Nolan County Attorney

Gritsforbreakfast said...

The funniest part about that quote, dfisher, is that she thinks a public defender in New Mexico is rolling in "filthy lucre." Was confusing, though, as you confused niece/daughter.

That said, I'm far more concerned with Peterson's official plea policies than any alleged filial failings. Criticisms here aren't personal, or at least mine aren't.

DH Law said...

Disbar them all. Its the least society can do.

TriggerMortis said...

What kind of self respecting criminal defense lawyer signs up for that "stand by" counsel job?


Other than the "self respecting" part, the answer would likely be a former prosecutor.

Someone like Murray Newman perhaps...

Anonymous said...

isn't this common practice in many if not all misdemeanor courts in Texas? "saves counties court appointed attorney fees."
If the goal is to save court appointed attorney fees how about reducing most of the existing misdemeanor offenses to fine only offenses?

dfisher said...

Sorry Grits, It was late when I posted, "as you confused niece/daughter". But my post was not aimed at being personal, just pointing out that even family members of TX prosecutors are held to be untruthful when representing defendants.

The mommie dearest was aimed at All parents who deride their children's, or relations choice of professions, especially prosecutors.

I hope your comment," Criticisms here aren't personal, or at least mine aren't." wasn't pointed at me, or was it...

Alex Bunin said...

TriggerMortis, while Murray is a former prosecutor and he holds that position in high regard, he is also a zealous defense lawyer and would never stand by while a client was railroaded.

Gritsforbreakfast said...

Well, dfisher, i would say I wouldn't have immediately gone to critiquing her family relations in off-topic forum conversations. That seemed to me to get a bit personal for the context.

Alex, I agree with you about Murray, I've seen nothing to make me think he's cynical enough to participate in such a charade.

John Young said...

Y'all sure you're talking about Nolan County? Our CCL is, after last Lege, the 1st multi-county court at law covering Nolan, Fisher and Mirchell counties. Judge has been onthis bench for a couple terms as both CCL judge and now judge of state's 1st MCCL. Judge David Hall is an honorable and decent man and a fair judge.

The hearings that the CA refers to as "Wild Wednesday (aka cattle call)" are arraignment hearings. The accused is arraigned and if he/she pleads guilty or says they want to plead guilty, he/she is admonished by the court as to the possible pitfalls of trying to negotiate a 'deal' with the county attorney. In addition to the verbal warning, the court provides a written admonishment as to the accused' right to counsel. The admonishment is similar to the one used in the CCLs in Lubbock Co.
As in many W. Texas misd courts, there is a 'jail call' or arraignment attorney to advise the accused and participate in any negotiations as well as explain admonishments and waivers.
I've practiced in W. Texas for 26 years and have been Board Certified in criminal law since 1998. Like many of your readers, I've appeared before judges who seem to sacrifice doing the right thing in favor of boosting numbers or political expediency. But David Hall is not one of those judges- he cares about getting it right.

Gritsforbreakfast said...

@John Young, the description of the process came from Lisa Peterson. I suppose she could be making it up, but why would she?

I don't know David Hall, but the situation she describes seems problematic, whoever is the judge.

Alex Bunin said...

I have practiced in many jurisdictions. Nowhere have I seen defendants waiving counsel and representing themselves when there is an attorney immediately appointed to them. That only happens when either the judge suggests it is a good idea or when they will have to wait until later to actually see a lawyer. Both of those tactics are illegal, but they regularly occur in many rural Texas counties.

Anonymous said...

It would be great if it were only rural counties that practiced this way.