Mass Justice in Southern Court Replete With Rights Violations, ABA Observers Say

NASHVILLE, Tenn. (CN) – On a Monday last fall, a group of court watchers with the American Bar Association say they witnessed the machine of a high-volume misdemeanor court in Nashville violating the rights of the poor and those who represented themselves.

Court 1A of Davidson County’s General Sessions Criminal Court, which handles misdemeanors that carry punishments of at least a month in jail, worked like an assembly line, the court watchers described in a report released Aug. 11.

People scheduled to appear in court were booked – fingerprinted and photographed – in one room and then shuffled into the courtroom where a prosecutor addressed the group, asking them if they wanted to strike a plea deal.

When the judge arrived on the bench, the prosecutor reportedly called up several defendants charged with the same crime so they could plead guilty together.

About 30,000 defendants pass through Court 1A each year. The pressure is to move quickly.

“A coercive atmosphere pervades Court 1A,” wrote the authors of the report for the ABA’s Section on Civil Rights and Social Justice.

That’s because prosecutors push for plea deals and judges don’t take the time to ensure defendants receive proper counsel and can pay the fines leveled against them, the report found.

One woman the court watchers met was in the court for the fifth time in two years. She was caught driving on a suspended license. But with two jobs that scraped in $1,200 a month to provide for three kids and a disabled grandmother, there was little left to pay the fines to get her license back.

Volunteers with the Arch City Defenders, a legal defense group out of St. Louis, Mo., visited the court on the behest of the ABA’s Section of Civil Rights and Social Justice on Sept. 12, 2016. The trip to Nashville was the launch of a larger project to find violations of constitutional violations in misdemeanor courts across the country.

The report’s primary author, Norman Lefstein, said the lack of counsel in some of the nation’s lowest courts is a vast problem that has gone on for years.

Two years ago, when the U.S. Senate held a hearing on the issue, Chair of the Senate Judiciary Committee Sen. Chuck Grassley, R-Iowa, declared, “The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day.  No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.”

In Nashville, prosecutors negotiated with defendants who were representing themselves and not completely aware of what was at stake, according to the report. Judges allegedly did not verify that defendants truly waived their right to counsel and never determined if defendants could pay the fines the court levied.

For someone living near or at poverty, a week in jail is enough to ruin job prospects. It’s time whittling away when they need to work to pay rent and get food on the table. And if they take the prosecutor’s bargain to plead guilty to avoid jail time, they run into a nest of collateral consequences, which range from no longer being allowed to live in public housing or taking out student loans for college, or even, as the report points out, being ineligible for “immediate disaster assistance.”

None of that is explained to the misdemeanor defendants, the report found.

“Under Tennessee Rules of Professional Conduct, Rule 4.3, prosecutors are prohibited from giving any legal advice to an unrepresented defendant, other than the advice to secure the advice of counsel,” the 22-page ABA report states. “Instead, [court observers] watched the prosecutor repeatedly advise, if not strongly encourage, unrepresented defendants (whose interests were in direct conflict with the state) to settle their cases through plea bargains.” (Parentheses in original.)

When Courthouse News contacted the office of Nashville’s district attorney general, spokeswoman Dorinda Carter said in an email, “I can tell you that the report is factually inaccurate. Defendants in courtroom 1A are notified of their constitutional right to an attorney on at least three occasions.”

While the job of the prosecutor is to bring charges, Joseph Ozment, president of the Tennessee Association of Criminal Defense Lawyers, told ProPublica the primary blame lies with the judges presiding over the high-volume courts and allowing the practices to continue.

It was not enough for defendants to sign a paper waiving their right to an attorney, according to the report.

“In both Courts 1A and 3A observers witnessed the failure of Nashville’s judges to inform defendants adequately of their right to a lawyer and to determine if defendants’ waivers of counsel are ‘knowing, voluntary and intelligent,’” the ABA study said. “As a result, it is doubtful that the judges’ conduct can be reconciled with Tennessee’s Code of Judicial Conduct, which requires in Rule 1.1. that ‘[a] judge shall comply with the law.”’

Meanwhile, the court watchers learned that the court’s clerk kept an indigency affidavit form that defendants could fill out to prove that they could not pay the fines the courts handed down. But they did not see any signs letting indigent defendants know about the form. Furthermore, the clerk the court watchers talked to said she could not hand out multiple copies of the form to return to the courtroom. Only a defendant who knew about the form could request it.

The ABA court watchers were suspicious of the fact that the affidavit form was not more available.

“Defendants somehow have to know to request the indigency affidavit form, which apparently is not readily available in the courtroom,” the report said. “This strongly suggests the General Sessions Court prefers defendants not complete the affidavit form regarding their financial status, thereby maximizing the amount of revenue collected.”

Davidson County Criminal Court Clerk Howard Gentry said the primary goal of the clerk’s office is to maintain records and collect court fees and fines, but not dispense legal advice. But Gentry’s office also assists defendants working through the system, mostly after the judge hands down final dispositions, he said.

“This is our culture here,” Gentry said in an interview. “It’s about helping … those who cannot afford to move through the system or that don’t have the knowledge to move through this system be better prepared for it.”

The indigency affidavit form is complicated and several pages long, he said, adding that it’s better if the clerks can assist defendants in the office.

“To pass forms out in the court room, I don’t think the judges would even allow that,” Gentry said.

In the 2016-2017 fiscal year, Gentry’s office collected $4.8 million in fees and fines, he said – but in that same year, the courts waived $5.7 million in costs from 13,000 cases.

How did Davidson County’s General Session Criminal Court get this way? The way Nashville-Davidson County public defender Dawn Deaner tells it, it started a dozen years ago or so out of good intentions. At that time, people who were served citations had to travel outside the city for booking, and then show up for their court appearance, which was scheduled at a later date.

The prison system was filling up with people who either missed their court date or booking, Deaner said. A new system was put in place so that defendants had to make only one trip where they were quickly processed. As a result, the number of failure-to-appear charges dropped.

At that time, the court handled about 50 cases a day. Today, Deaner said, it’s closer to 200. And while everyone in that court has a right to an attorney because they face the possibility of jail time, about 85 percent facing a misdemeanor charge don’t utilize that right.

That’s because there’s a stigma against public defenders, according to Deaner, leading defendants to believe public defenders will just try to make them plead guilty.

In the ABA report, the court watchers said they found that no public defender staffed Court 1A.

The simple answer is staffing issues. In February, Deaner said, the public defender’s office moved away from that court, listing many of the defendants there as workflow conflicts.

Public defenders offices are notoriously overworked. The office of 45 lawyers in Nashville “triages” clients, focusing on the most serious cases, Deaner said.

“Imagine if all these people asked for a lawyer,” she said. “The public defender’s office isn’t resourced to handle 30,000 additional citation cases. The cost to the indigent defense fund would be high. And frankly, when you get a lawyer involved, things slow down a little bit.”

Deaner pointed to a pilot program that Nashville is rolling out that diverts suspended-license cases from Court 1A. The Steering Clear program is expected to be rolled out later this year, she said.

Its purpose is to handle suspended-driving cases outside the courtroom. Oftentimes those cases are “crimes of poverty,” according to Deaner, because people can’t afford to renew their license.

Another solution that study author Lefstein said people have proposed is to remove the penalty of jail time from some misdemeanors – lower the stakes for the defendant so they don’t have a right to a lawyer in that instance.

But that also raises legal questions about whether those people would be subject to collateral consequences.

“And obviously,” Lefstein said, “the ultimate solution if you have offenses like this is to follow the requirements of the law.”

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