Public Defense

Wrong time, wrong battle

By Gideon

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this:

The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges

Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.

Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.

In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:

Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

State v. Mitchell, 200 Conn. 323 (1986). C.G.S. 54-46a, which codifies the HPC and sets out its procedures, states, among other things:

(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.

The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant¹. That’s not the case with the right to the hearing itself.

That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause², he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”³.

But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.

We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.

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¹State v. Santiago, 245 Conn. 301 (1998).
²State v. Mitchell, supra.
³See, e.g., State v. Estrella, 277 Conn. 458 (2006).

Full post as published by A Public Defender on March 28, 2011 (boomark / email).