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More on the plight of pro se and low income criminal defendants

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A family member has numerous times over the years admonished: "Money talks. Sh*t walks," as I have navigated my life. As darkly sad and true such a saying is for those without much money, his delivery of this refrain has usually made me laugh, both because it is when this mild-mannered man often is at his funniest, and also perhaps because it is less uncomfortable for me to laugh than cry over this.

No, I am far from a communist, socialist, nor pinko, and have railed against them all at various times in my life. But when it come to the criminal court system, we have gross injustice on our hands that the prosecution of a person of modest financial means (and plenty are not guilty, or are charged with crimes that should not be criminalized, including marijuana, prostitution and gambling) limits his or her choices of obtaining quality criminal defense. Criminal defendants of modest means are the most fortunate to be poor enough to qualify for court-appointed/public defender counsel; or are they so lucky, because if they are that poor, they are dealing with the daily struggles of poverty. Too many of the working poor do not qualify for court-appointed counsel, and face crushing financial burdens to pay a lawyer.

Consequently, I think that we need a system that recognizes that it is not merely either-or about whether a person can or cannot afford a qualified criminal defense lawyer, but a matter of creating a system that provides sliding-scale partial reimbursement to those who do not qualify for court-appointed counsel but are still too poor to hire a qualified criminal defense lawyer. Not only will that make things more fair for criminal defendants, but this extra burden on the tax system might better convince people to come to my side of advocating to shrink the criminal justice system by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing and the death penalty; and eliminating per se rules in drunk driving cases.

Socialist you say? The entire criminal justice system is a socialist system already, from policing to prosecuting, to judging, to public defenders, to jails, to probation officers and the list goes on. Huge funds also line the private industry from the criminal justice system, including only as a few examples, builders of courthouses and prison, makers of police weapons, and the suppliers of all those computers and other accoutrements needed by everyone in the criminal justice system. The criminal justice system is a multi-billion-dollar socialist system that will be very difficult to shrink in the face of all the people who depend on substantial pay from the criminal justice system.

The criminal justice system is full of the financial and power muscle of police,prosecutors and judges. Criminal defendants need the muscle of qualified criminal defense lawyers in the face of so much muscle.

Sadly, every day in state-level courts, we see scared, comparatively powerless criminal defendants coming to court without a lawyer. Sometimes they are without a lawyer because they have just been arrested and are in a system that does not provide indigent defense lawyers that early on. Sometimes they are financially struggling to pay a lawyer. Some qualify for a court-appointed lawyer but do not make it a priority to apply for one. Some have decided to save money on an attorney, if they believe they will not go to jail in their case even if convicted. For cases likely to be offered diversion, often potential clients tell me of lawyers who tell them of the option to go to court without a lawyer. Beware, though, of prosecutors bearing diversionary gifts.

Sometimes, I see well-meaning judges offering pro se criminal defendants to consider first-time offender pleas and diversionary programs even when it is clear that the judge will grant a new trial date for the defendant to have a lawyer, and that such offers will still exist after the defendant hires a lawyer. Judges certainly should not suggest such considerations as a means to thin their dockets.

Every time a judge makes such an offer to a pro se defendant, I feel like asking the judge to tell the defendant that if s/he hires a lawyer, the defendant wll be in no worse shape — and maybe better shape — other than having a lighter wallet. I need to take action on this, preferably joining with other lawyers to get this message out to judges.

Criminal defense is war. Prosecutors come to court backed up with experience, legal education, colleagues, staffs, and police helping them. Judges have power, legal educations, staffs, and security personnel. How on earth can a pro se criminal defendant expect to successfully navigate such stormy waters alone?

Criminal defense lawyers can help level this unlevel playing field, including providing pro bono and low bono services; being available for their less experienced and more experienced fellow criminal defense lawyers to share experiences, knowledge and brainstorming; and getting authorization from judges and ethics regulators to have free consultation and pamphlets available to help pro se defendants avoid the pitfalls of going it alone, particularly to advise them to get a lawyer, and to beware pleading guilty to such damning non-jailable offenses (non-jailable in some places) as drunk in public, possessing an open beer can, and possessing a pot pipe, that can have devastating effects on their careers and immigration status.

At bottom, pro se is not the way to go