Thursday, October 23, 2008

You just can't outlaw stupid...

This could probably be a whole series, but this is just in relationship to a recent visit to the local superior court house to help a friend do some research on his case. It made me think about the procedure of things, and the up and coming prop 5 on the ballot. See link if you are not familiar.

Just to note, I am not a lawyer and this is not legal advice. Though that should probably be at the bottom of my page, I am just saying it now in case I don't ever get amount to putting it on my page... as with many things :)

(UPDATE: There now is a little disclaimer next to the copyright notice, woot)

That being said, I am getting a stronger and stronger impression that a public defender is about as helpful as having Brutus and Judah as military advisors; they are not traitors to the cause... necessary... yet... but they swear to have your best interests at heart. So anachronisms aside, I think the system as it is designed is GREAT! If you look at the law and the job the judge and public defender have to do, it is amazing. The standard, if you look at the rules, are VERY high for protecting the interests of an accused... the problem? Same problem you have in any game where everyone knows the rules of the game except you. You CAN NOT win in that situation, and as the title suggests, you can't outlaw stupid. So what happens, and whose fault is it, especially when they, or anyone for that matter, already has evidence against you?

Unfortunately, there are a LOT of people that never take the time to learn the law, mostly because it is considered boring or uninteresting... but complain when the systems does not work the way (they thought) it was supposed to. Know why it fails? Because between a seasoned judge, district attorney, and oddly enough your own lawyer, you are still the weakest link.

Ok, getting back on track, what does this have to do with prop 5? In the blindingly fast process of arraignment I observed, there were two ways that cases went. Plead guilty and receive the minimum mandatory sentence graciously offered by the judge and set date for sentencing, OR plead not guilty to which you were asked a series of 'simple' questions that waive as many of your constitutional rights as possible. Ironically, I bet that was what they thought "not guilty" avoided.

The one that really got me was the "Do you want to give your lawyer more than 45 days to review your case?" You think this would be a very simple, straight forward question, right? Of course it is! The 6th amendment gives you the right to a speedy trial. With misdemeanor charges in California, that means they have 45 days to prove their case, or dismiss. However, some people need more time than that to fight the evidence against them, otherwise there would be a violation of due process, taking what was meant to be a protection and turn it against you.

So my question is this: Why is the accused being asked at an arraignment without an attorney how long it will take a lawyer to put their case together, especially when you have the right to waive at ANY time, but you can never un-waive? Isn't this a better issue to discuss with the lawyer, and allow the lawyer to advise the client on?

(UPDATE: Evidently you can waive and unwaive at any time, more or less, but it resets the clock for the D.A.; 45 days starts over)

But of course that issue was handled in Miranda v. Arizona. Not only do you already have so many rights to protect you, but police have to explain them to you before 'many things can happen'. You have a right to an attorney (further, you have a right to a competent attorney, US v. Pope) and all that other good stuff. Do people just not get that those rights still apply when you are in court, not JUST with police?

There are too many clich├ęs about "common sense" to pick one, but it appears to me that it is a big issue of law. For example, if you are unsure of what entering a plea necessarily does, why are you answering the question? But at the same time, why should a judge be explaining those "special circumstances" to you? I only read about this recently. When you enter a plea, as offered by the judge, you acknowledge validity of the proceedings. Sure, you got all these rights and stuff, and you and the court are going to argue many things. If you enter a plea, you are not necessarily waiving a right, but it can be used against you later. Or more simply, arraignment is a stage in the proceedings. Once you enter a plea, you are assisting in moving things forward. Well, what if there was something that you could have challenged in that stage? Well, as we have seen in many movies, is that you can only say "guilty, not guilty, or no contest". But what if you just say nothing? Can you get in trouble for not saying anything at all? What if you don't understand what is going on, but you know you have the 5th amendment to protect you in some way?

Maybe it is insignificant, as I really haven't researched it thoroughly, but if you do not enter a plea, the judge is forced to enter you into a plea of not guilty, with the interesting side effect of never having a record of your acknowledgement of the validity of the proceedings. It is called a "mute" plea, and goes on record as such. My impression that pleading can be used against you later; "Well, if any of your rights had been violated before this point, why didn't you say something. Sorry, too late". Anyway, take that for what it is worth, I look forward to looking into it further.

Ok, so as briefly mentioned earlier, accused have the right to a competent attorney. Did a little homework on what that really means. I discovered, for lack of a better word, really quite hard core. US v. Pope is very interesting. I am sure to anyone that hasn't read it will finish saying, "Wow, I never knew the standards for lawyers are so tough!". They should understand the evidence being used against you, what is legal, and defend their client to the best of the ability like any other lawyer. Some lawyers may have special arguments or tricks up their sleeves, and that doesn't count. Neither do obscure interpretations of the law, but they should be up to date on relevant cases, particularly for the local county and state.

So what inspired this post was outrage, nearly getting up and yelling at the judge Better judgment told me that could have resulted in nothing but bad, by comparison to sitting there quietly. I painfully could not justify taking the risk, despite feeling that any lawyer worth his weight in water would have done things differently. Nobody there for misdemeanor weed possession had representation. I think there were about a dozen people there for such charges.

And here is one of those places where entering a plea would be bad. These people were being charged with a crime the people of California are trying to change, with prop 5. Among other things, it would reduce minor possession to an infraction and a $100 fine, and no civil assessment, meaning it would be just like a traffic ticket where you just have to pay the fine, and you are done.

These people moved forward with misdemeanor proceedings, to which all I could think was WHY?!? Don't plead guilty to something that might not be illegal in two weeks?!? The law is retroactive in this case. Pleading innocent wouldn't make sense either because you are still moving forward with something that might not even be illegal in two weeks.


Why not simply request a continuance? Two week continuance? First request? I'd bet you could ask for a two week continuance for ANYTHING! Like, "Umm... I don't know if I want a public defender, I need to ask my mom" would be a good enough reason, let alone the fact that the law may dramatically change very soon.

As I said before, any lawyer worth their weight in water would have made that argument, and any lawyer that didn't should be charged with malpractice.

UPDATE: I wrote this with a lot of frustration and obviously didn't look over it when I wrote it. I will go back and fix some of these really broken sentences in the near future. Sorry to inconvenience anyone that was interested in what I was trying to say. FIXED!

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