Gideon Alert: NACDL report exposes Florida’s “no counsel” courts

BY David Carroll on Wednesday, August 3, 2011 at 3:16 PM

“Supreme Court Justices rarely consider appeals of misdemeanor convictions.  Nearly a half-million misdemeanor cases are filed in Florida’s county courts every year, and the vast majority of those cases are resolved by a plea of guilty, often in a matter of minutes.  Advice of rights by the courts and the assistance of lawyers for the defendants, whether they can afford them or not, are exceptions, not the rule.  It is as if our criminal and traffic courts operate as 'constitution-free zones,' outside the law.” -- Gerald Kogan, former Florida Chief Justice

Thus begins a new report, Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts, by the National Association of Criminal Defense Lawyers (NACDL), released August 2, 2011, depicting Florida’s lower courts as “consistently sacrificing due process for case-processing speed.” (Read NACDL’s press release here.)  The report is a follow-up to NACDL’s earlier nationwide misdemeanor study, Minor Crimes, Massive Waste.  Backed by quantitative data and analysis, the researchers found nearly 70 percent of all misdemeanor defendants entered a guilty plea at their first appearance in proceedings that lasted less than three minutes in 82% of those cases.  Clients appeared without the assistance of counsel.  Extrapolating from the data, this means approximately 175,000 people per year are pleading guilty to misdemeanors without counsel in Florida alone.  (Read how Broward County is ignoring the Sixth Amendment in its municipal courts here.)
 
NACDL’s study of 21 Florida counties confirms what NLADA has found throughout the country. Namely, the constitutional failure to give defendants adequate representation is most glaringly obvious in our country’s lower courts where misdemeanor cases are heard and felony cases often begin.  It is a common occurrence for these courts to attempt to save money and expedite the processing of cases by pressuring the accused to forego his right to legal representation without adequately informing him of the potential consequences of doing so (such as loss of public housing, deportation, inability to serve in the armed forces, ineligibility for student loans, among others).  Other courts impose large fines and costs when clients insist on legal representation, or they simply refuse to appoint an attorney all together in direct violation of the Sixth Amendment.  
 
In one Idaho county, for example, we saw posted on the window of the Clerk of Court, where all defendants report prior to going to court, a sign which reads: “If you apply for a Public Defender and the service is granted to you, IT IS NOT FREE!” [emphasis original] In Michigan, we watched as a magistrate judge arraigned misdemeanor defendants in groups of five to eight at a time, addressing the defendants en masse, advising them of their right to counsel and that they could be charged a fee for exercising that right.  The fee would be $250.  “Raise your hand if you want an attorney.”  And in Florida, NACDL reports similar tactics that chill defendants’ exercise of their right to counsel: “In one Broward County courtroom, defendants were given a rights-waiver form that included a blanket-assessment of $350 for public defender costs if the defendant entered a plea after arraignment.”  
 
It is in no small part because of examples like these that the U.S. Supreme Court has consistently ruled that all defendants have a right to meaningful representation, wherever there is a possibility of jail time, no matter how short the sentence or how long the delay in imposing that sentence.  Therefore, Florida policymakers – and indeed policymakers everywhere throughout the country where these so-called no-counsel courts exist – have a clear choice.  They must either provide access to attorneys with sufficient tools and training and adequate time to employ their skills on behalf of every person accused of a jailable offense, or they must decrease the need for right to counsel services by reclassifying certain low-level misdemeanors as non-jailable civil infractions.  While the NACDL report includes specific recommendations for Florida policymakers to consider, and we encourage them to do so, the message is clear: the Constitution cannot be rationed, no matter how troubling the current economic forecasts.  
 
The United States Supreme Court foretold the danger of emphasizing speed over due process nearly 80 years ago during the Scottsboro Boys case [Powell v. Alabama, 287 U.S. 45 (1932)]: “The prompt disposition of criminal cases is to be commended and encouraged.  But, in reaching that result, a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.  To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.”  Or, as former Chief Justice Kogan succinctly concludes in the NACDL report, “[t]he ‘three-minute case’ is not an achievement to be proud of, like a three-minute mile.”
 
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