Tales of Moral Hazards – Part I (of many)

“In short, America’s indigent defense systems exist in a state of crisis.” – U.S. Atty General Eric Holder

Fifty years ago this week, a man named Clarence Earl Gideon achieved something remarkable for a man who was forced to represent himself. His handwritten petition for Writ of Certiorari had been granted, and the Supreme Court decided in March of 1963 that his argument – that the Sixth Amendment should guarantee counsel to an accused who cannot otherwise afford it – had merit. Today, every local government provides representation according to the mandates of Gideon v. Wainwright.

But providing counsel for poor people accused of crimes has never been a “winning” issue with the voting public, so counties spend the bare minimum that it deems necessary to provide for that right. Many stereotypes about public defenders are unkind, but none of them is true as often as the one in which the well-meaning public servant simply has too many cases to handle.

Strangely, this situation provides public defenders with one potent weapon.

Although the constitution gives vague promises of a speedy trial, states enforce these promises with specific guarantees. In California, those accused of misdemeanors have the right for their cases to be tried within 30 days of the defendant’s first court date. Those accused of felony crimes have the right for their case to be tried within 60 days of their first court date in Superior Court. If a defendant asserts their right to a speedy trial, then any case postponed beyond these deadlines must be dismissed.

If no defendant waived these rights, the machine would grind to a creaking halt before exploding and spewing hot shrapnel in every direction. In California, many of our most important budgeting decisions are made by popular vote; as much as people love charging people with crimes and locking them away for tragic amounts of time, they aren’t as fond as taxing themselves to pay for the necessary infrastructure. The courts simply cannot handle current case volume unless defendants “waive time,” i.e. surrender their rights to speedy trial.

And if every single defendant refused to waive time, nearly every single case would be dismissed. In fact, since the public defender represents more than 80% of all defendants in a given county, this result would occur if public defender clients by themselves went to trial “time not waived.”

I have personally witnessed the fruits of this tactic. I routinely withdraw my client’s time waivers once I have prepared their case for trial. On any given Monday, I would walk into court with between 7 and 10 cases that had to be tried by the end of the week or be dismissed. Of these, several would be dismissed outright by the DA. Others would be made plea bargains that they would never have otherwise received (“disturbing the peace” was my favorite catch-all charge for my client plea to as part of their deal). Clients who were in custody would be offered credit for time served – a plea that day resulted in their immediate release. If I was lucky, I would still have one stubborn client who refused every deal or the DA would still have one case worth pursuing so that I would get to do at least one jury trial that week. Now, I should state that the reason this “trick” worked was because I wasn’t bluffing; I put in the extra hours so that I would actually be ready for trial on all the cases I brought to the DA.

Even though speeding to trial benefits our clients as a group, it does not always benefit the individual client. Some clients benefit from having their case “age.” For example, clients whose victims are elderly benefit from a little extra time before going to trial (and don’t look at me like that). If a case is complicated and requires extensive preparation, then it is in a client’s best interest to give me the time I need to put together a good defense. Sometimes a key witness doesn’t want to be found and needs to be tracked down, served with a subpoena, and then informed that ripping the subpoena to pieces and spitting on those pieces does not actually release them from the obligation to appear in court. Also, if a client understands that he will be facing a lengthy prison term, then he may want to earn as much credit “locally” as possible. Conditions in prison are far worse than in county jail. There are many reasons a client would want to decline their right to a speedy trial.

A client’s individual best interests may not be the same as the group’s best interests. These can be balanced, but the balancing needs to be cautious and deliberate.

I am mildly saddened to think that public defenders are so overwhelmed with cases that they can often get the best results for their clients by piling all the cases in a briefcase equipped with a [metaphorical!] time-bomb and leaving that briefcase on the steps of court, expecting the DA to disarm it before it explodes. I’m sure that this is not what Clarence Gideon had in mind.

Respectfully Submitted,

Norm DeGuerre

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