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And forever in peace may you wave/waive

Feb 05, 2008 And forever in peace may you wave/waive

Bill of Rights. (From the public domain.)

Even well-meaning judges and lawyers sometimes will unintentionally put criminal defendants’ rights at risk. A late and usually amiably-speaking judge (I said amiably-speaking, but not without substantial faults) repeatedly would ask non-English speakers — apparently out of concern for their well-being and earning power — seeking postponements to get lawyers (fortunately he would grant the postponements): "Do you have a green card?" "Why not?" I’ll tell you why, judge, because the United States government and its elected officials make a green card harder to obtain for too many "lower-skilled" people than panning for gold.

Another judge, in Maryland District Court, known frequently for giving harsh sentences at the front end and for probation violation findings, would tell defendants who appeared without a lawyer for trial that because the court commissioner had already advised them at least a few weeks before of the right to counsel (right, on the night or day when the defendant was dealing with the recent trauma of being arrested and locked up, which is hardly an ideal time to focus on and understand the rights being swiftly told by the often assembly-line commissioner, who is not required to have a law school education nor to be a lawyer) that "I assume you waive the right to counsel, waive your right to a jury trial, and freely elect to proceed before this court today. Is that correct?" The Pavlovian response usually was a confused "yes", just like one’s leg involuntarily kicks up when the doctor taps the reflex hammer on one’s knee. It was apparent to me that the foregoing litany would just go in one ear and out the other of too many of these unrepresented criminal defendants, often scared, risking conviction and the loss of liberty.

One day, an unrepresented defendant entered a guilty plea before the foregoing judge, but, before being sentenced, told the judge he wanted a lawyer and a trial. The judge told the man it was too late, since he answered affirmatively that he was waiving his right to a lawyer and a trial. The man was scared and adamant to withdraw his guilty plea. I was a public defender lawyer at the time, ordinarily got along fine with the judge when he was off the bench, and volunteered to give my two cents, which he accepted. I suggested that the defendant seemed so confused, that it was questionable whether he thought "waive" (as in to give up rights) actually was "wave" (as in to welcome rights and to wave at them). When lawyers spend more time with real people on an even level, they will learn that a large percentage of people do not know what waive, presumption, and suppress mean in court, among other essential legal words. It would be nice, then, for judges to replace "waive" with "give up".

Many years later, just this year, I heard one of the more intelligent judges who apparently wants to do the right thing as he defines it, asking a pro se criminal defendant if the judge was correct that the defendant was "waiving" his right to a lawyer, after the defendant had flip-flopped back and forth between saying he wanted to plead guilty, wanted a lawyer, and "yes" to "waiving" his right to a lawyer. He seemed more like a deer caught in the headlights who did not know what to say in front of this black-robed authority figure sitting on a chair/throne elevated higher than everyone else in the courtroom. The judge denied the defendant a continuance to get a lawyer. At least the judge advised the defendant of his right to demand a jury trial, which only would have sent his case to the Circuit Court for a trial the same day; the defendant was confused about that right, too.

Then there are the judges who sound like downright tyrants before unrepresented criminal defendants. One day a trial judge called an unrepresented criminal defendant front and center and started explaining the defendant’s option to be interviewed for a theft diversion program if he did not want to first try to consider the program after seeking a court-appointed or paid lawyer. The defendant politely looked at the judge. When the judge then asked "What is your pleasure?" the defendant stammered out "No speak English." The judge exasperatedly blurted: "Why didn’t you tell me that in the first place?" and told the man to wait for the interpreter. Hello, judge, this unrepresented and likely scared defendant was called before an authority figure sitting up high in robes, not knowing what you were saying in English, and perhaps scared out of his wits of the backlash that might take place if he even dared to stammer to you in mid-sentence that he spoke no English. For all I know, the defendant may have come from one of the countless countries where judges reign terror upon the powerless masses in the service to the wealthy and powerful people who pay their salaries, bribes, or both. (Certainly, even systemically, the American judicial system, as well, primarily maintains the status quo in favor of the wealthy and powerful, with some exceptions, of course.)

As much as I wanted to talk to the foregoing judge about his exasperated response to the unrepresented non-English-speaking gentleman, my case got called soon after this gentleman’s case. I then had the choice between leaving the courthouse after handling my quick procedural matter (to then help my next client) or to wait to see if the judge would even see me one or two hours later in chambers. I could have, and should have, arranged to communicate with the judge another time about this; I do not go to that courthouse often enough to have stored the judge’s name in memory. Of course, no guarantee exists that the judge will not take out such talk from a lawyer — even if couched in diplomatic words and a respectful tone of voice — against the lawyer and his or her clients. However, if lawyers witnessing such behavior do not speak up — either directly, anonymously, or through the local bar of state criminal defense lawyers association — who will? 

Recently again, an unrepresented defendant’s case recently was called in a Maryland District Court where continuances cannot be obtained by demanding a jury trial (which is not a right to be demanded without careful thought, because a jury trial also can be obtained by appealing a conviction in District Court to Circuit Court if a probation before judgment is not sought or received), because the jury trial will just take place later that day or the next day, at least for unrepresented defendants unable to seek another date based on calendaring conflicts. This time, the judge was someone who has an apparently well-earned reputation for being fair-minded, kindly-toned, and intelligent. The prosecutor told the judge that he understood the defendant wanted a continuance to obtain a lawyer, and that the prosecutor did not object. The judge then went into a lengthy question and answer session with the defendant to try to find out what the defendant had done to obtain a lawyer. When the defendant said he had recently lost his job well in advance of the trial date to meet the public defender’s cutoff date to apply for one, the judge put the defendant under oath (without telling the defendant of his option to refuse to talk, particularly without a lawyer present) to put his reasons on the record why he was present without a lawyer. The judge, nevertheless, denied the postponement, and told the defendant he could speak with the prosecutor at the break (without telling him of his option not to talk with the prosecutor, including under the Fifth Amendment). 

Perhaps the foregoing judge was exasperated to see the defendant — after having been advised at least one month before of his right to counsel at a preliminary inquiry, and his risk that he would be deemed to have waived that right by appearing on the trial date without one — having done little to obtain a lawyer in a huge courtroom awash with unrepresented defendants, with the knowledge that each continuance to obtain counsel makes the courtrooms burst all the more at the seams. (As I have said many times, I urge legalizing prostitution, gambling, and marijuana and to heavily decriminalize other drugs, not only for civil liberties reasons, but also to eliminate an overgrown and overly unjust criminal justice system that runs rampant on the right against unreasonable search and seizure, the right to obtain a just bond, the right to receive a fair sentence, and the list goes on; having a smaller criminal justice system will enable hiring, training, paying and retaining better candidates overall.)

I only hope that the foregoing judge, who seems to have many excellent qualities as a judge and as a person, will not put any more unrepresented defendants under oath concerning continuance requests, and if he does so, that it only will be because the judge is likely to grant the continuance, to make clear to all in the courtroom that they best not be fibbing about the reason for seeking a continuance (and this particular unrepresented defendant did not sound like he was fibbing).

On the topic of seeking more time to obtain a lawyer, effective private criminal defense lawyers can be very expensive. If the legislators, judges and others setting the guidelines for approving and rejecting candidates for indigent counsel and deciding whether a person has been just plain dilatory in hiring a lawyer (and why should a low-income defendant be deprived of some more time to hire a private lawyer if that is what the defendant wants and if the defendant has a real chance of borrowing or otherwise finding the money to hire a lawyer?) had a better idea of how high are the prices of private lawyers, perhaps they would be more flexible in making them eligible for indigent defense in the first place, as well as more than just four weeks to pay a lawyer.

And forever in peace may you wave. (Oops, or was that waive?) Jon Katz

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