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The risk of judges misadvising and inadequately advising self-represented criminal defendants

Jul 05, 2012 The risk of judges misadvising and inadequately advising self-represented criminal defendants

Pro se/self-represented criminal defendants and civil litigants present a conundrum to judges. Ordinarily, a qualified and experienced lawyer can help save the court’s time, resources, and aggravation on cases, except of course when the lawyer goes to trial, which many pro se parties avoid, or handle in too cursory a manner. However, when a judge gives a trial date continuance to a pro se party, the judge knows that the continuance will further clog up the court’s overclogged obligations, and that plenty of parties merely show up without a lawyer the next time.

Some or many judges might see a golden opportunity with pro se criminal defendants in the form of dangling a disposition in front of them that will help alleviate clogged dockets. The judge might smilingly tell the defendant about the possible availability of a diversion program, or that the judge will not order active jail time if the defendant pleads guilty. If the judge is going to dangle such offers to pro se criminal defendants, I urge judges to do the following simultaneously:

– Tell the pro se party about his or her right to a lawyer, and whether the judge will grant a continuance to obtain one.

– Tell the party whether any diversion options will remain open through the next court date.

– Obtain a complete knowing and understanding waiver of counsel from any pro se defendants who are about to proceed without a lawyer.

– Advise that not all glitter is gold, and that only a qualified criminal defense lawyer can advise of the advantages and disadvantages of accepting a diversion program.

No free lunches exist. All benefits involve a tradeoff. When accepting a "diversion" disposition, will the disposition be viewed as a guilty disposition? Will expungement rights be impaired? Will driving privileges be removed? What time and money will be involved in doing the disposition? What are the risks if a claim arises of unsuccessful completion of the diversion program? Who decides whether the diversion program has not been complied with? What appellate rights are forfeited or curtailed with a diversion program?

Paying lawyers will lighten criminal defendants’ wallets, although many will qualify for public defender and court-appointed counsel, plenty of which are excellent. As with the old oil filter commercial, you can pay now or pay later if you decide to go to court without a lawyer.

I have already warned people about going alone to court and about diversion programs here, here, here and here. Prompting today’s blog entry was the unfortunate situation I witnessed recently where a very experienced trial judge conveyed to a pro se criminal defendant that his choice was between diversion and a conviction for underage possession of alcohol. The judge did not mention that dismissals and acquittals sometimes are in the cards, as well, whether or not he thought that the acquittal and dismissal options were inferred. Nor did the judge advise on the hyphened points addressed above.

What are my options for helping ameliorate the problem described in the foregoing paragraph? Talk with the judge without a prosecutor’s presence? Tell the pro se defendant s/he may wish to consult a lawyer, while simultaneously declining representation by me (which I will always decline when offering such a suggestion) and declining on-the-spot advice (which can come back to haunt the lawyer outside of a formal consultation)? Work with other lawyers to prepare pamphlets — approved by the bar and judicial authorities — warning them about proceeding pro se?  

At lease some pro se criminal defendants have sufficient funds to not make lawyers feel bad about not stepping up to try to ameliorate their plight. However, a large percentage of unrepresented criminal defendants do not qualify for court-appointed/public defender counsel, and face financially crushing burdens to hire a lawyer. Lawyers can help reverse the disadvantages that pro se defendants face when diversion programs and attractive guilty pleas are dangled before them.

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