Right to a Lawyer?

Do you really need a lawyer? I’m of the opinion, if you have to ask, then the answer is almost always “Yes.”

But, consider this:  You are charged with a misdemeanor offense, you show up for court, and the judge asks, “Have you talked to the prosecutor yet?”  Saying no, the judge instructs you to meet with the government prosecutor and see what they have to say.  While there is nothing wrong with listening to what someone has to say, be assured the government prosecutor is not there to help you.  And, it’s against the law for the judge to send you to talk to the prosecutor without even advising you of your rights, including your right to remain silent and your right to a lawyer.

I’m working with a group of young lawyers who are participants in Gideon’s Promise.  This is a group of relatively young lawyers who are dedicated to criminal defense.  I am fortunate to participate through a Harris County grant wherein lawyers like myself agree to mentor these young lawyers as they begin their practice.  I help answer questions about the law, about running their new business, and even particular cases.  One of these lawyers went out to Wharton County recently to see about getting on their list of court appointed lawyers. What he witnessed was something of concern.

Defendants (those recently charged with misdemeanor offenses) were being brought before the court for an arraignment.  Arraignment being a fancy word for a first appearance in court where the accused is advised of his rights and the charge.  Interestingly, the judge reportedly called each person up, one by one, to ask whether or not he had spoken with the prosecutor.  Where he said he had not, the defendant was instructed to talk to the prosecutor to get his “options.”  The defendants were not told about their rights – including the right to remain silent and the right to have an attorney.  Every person accused of a crime has a right to counsel and clearly a right to remain silent.  Where a person cannot afford a lawyer, assuming they meet basic guidelines, the court is required to appoint a lawyer to assist the defendant.

The prosecutor represents the State of Texas, not the accused.  The prosecutor usually wants a finding of guilt and some sort of punishment.  Understandably, that is their job.  They are not tasked with explaining rights to the accused, nor are they in a position to protect those rights.  Clearly, sometimes people just want to plead guilty and take their punishment, so it might seem talking to the prosecutor is the best means of accomplishing this task.  However, prosecutors are often not even aware of all the collateral (external) consequences for each defendant.  They do not tell the accused that the guilty plea will be used against them in the future – not just in the event of a new offense – but in getting or keeping a job, renting an apartment, being able to drive (or not being able to drive because of the plea), and many other consequences.

This process – the judge telling the accused to speak with the government first – not only violates the law but also offends our sense of justice.  Throughout the years, I have heard many times of this practice.  I find it disturbing every time.  However, I also thought it had stopped.  Recent legislation cleared up the law and forbade this process.  I naively thought it had stopped.  Sadly, it is still alive and just as tragic.

Thanks to the young lawyers of the FACTer Program (Future Appointed Counsel Training), this disservice is again brought to light.  Now, the question:  What to do about it?  I immediately began brainstorming about the possibilities:  pro bono legal work, education, complaints, etc.  I’ll keep you posted…but I think I’ll be taking a short trip to Wharton County very soon to see what I can do.

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