Sunday, February 15, 2009

You call this an intelligent waiver?

Down in Galveston County, the misdemeanor judges are fond of telling citizens appearing before the court for the first time that they have three options: they can hire an attorney, request an appointed attorney or talk to the prosecutor about their case.

Of course it's done in such a casual manner that most first-timers have no idea what their rights are nor what they're being asked to waive.  Typically the judge will inform the citizen that they have been charged with either a Class A or Class B misdemeanor and tell them the range of punishment. Then the judge gives them the options.

At no time does the judge inform the citizens that the Sixth Amendment to the U.S. Constitution affords them the right to counsel, the right to trial by a jury of their peers and the right to confront the witnesses against them. At no time does the judge inform the citizens that the Fifth Amendment affords them the right to remain silent or that anything they say to the prosecutor can, and probably will, be used against them. At no time does the judge inform the citizens of the protections against unreasonable search and seizure afforded them by the Fourth Amendment. 

In short, at no time does the judge give the citizens all of the information they need to make an informed decision about how to handle their case.

I was recently retained to obtain post-conviction relief for a citizen who pled guilty to driving while intoxicated as a result of a breath test result that has since been ruled invalid. He pled on his first court appearance without ever having consulted with an attorney. He pled based on statements made to him by the prosecutor. He pled without having seen the formal charge against him, reading the offense report, examining the breath test slip and maintenance records, or watching the video. In short, his plea was the result of fear and ignorance, not a knowing and intelligent waiver of his basic constitutional rights.


Brian Tannebaum said...

Oh, c'mon Paul, how are we going to sift through all these misdemeanor cases and raise the conviction stats of the state if we start doing these ridiculous things like informing defendants of their rights? We have cases to close, dockets to clear. We can't be worried about those amendments to the Constitution. Next case.

Anonymous said...

Am I wrong, or is it the case that the only warnings mandated by law are those in the Miranda warnings? There is no obligation to warn about 4th amendment rights, no? (Don't get the wrong idea - I think citizens should have their rights drilled into their skull somehow - maybe in (currently nonexistent) civics classes. I see so many people acquiescing to searches, and to speaking with law enforcement because they simply don't know that courts assume they can just walk away. Or that refusals cannot be held against them in a court of law. In all my encounters with police, they berate you as non-cooperative or combative if you don't allow them to do whatever they want. In fact I recently saw an article referred to in a blog, where a law student actually did a study, asking people on the street if they felt they could just walk away from police if asked a question by them. As I recall, an overwhelming majority felt obligated to answer.)

ambimb said...

In MT there is pretty good caselaw saying that unless a judge clearly informs a defendant of his right to counsel, advises of maximum penalties, etc., defendant can withdraw his guilty plea. Of course, judges hate this b/c when you bring such a motion you have to point out to them that they or their colleagues screwed up. I won such a motion once and had the judge was so angry at having to grant the motion that he ordered my client (who had long ago bailed out on the charge when initially arrested) into custody and set a bond about ten times higher than normal for the charge. My client was at that time broke and unable to pay an additional bond so the judge graciously offered to allow him to plead guilty again and be released. Client pled, judge did colloquy correctly, and I went home and cried.

I hope you have better luck...

Anonymous said...

Galveston County should be receiving X-ray attention from the Department of Justice.

They are a horror show.

Thank you for bringin attention to this.