I want to share a frustrating experience I had recently that will be a good lead-in to this month’s topic. While observing court I happened to see a woman whose case was on for an arraignment on a misdemeanor (legal terminology will be discussed in a later email – for now use Google). To make a long story short I will summarize the pertinent information. This woman believed she was not guilty of the offense she was charged with. She politely declined the judge’s generous offer to reduce her misdemeanor charge to a violation (which is a significant reduction as violations are not “crimes" generally speaking) and she exited the courtroom. She re-entered the courtroom 10 minutes later and I knew she had changed her mind about contesting the criminal charge. I was able to make contact with her and informed her that I’d review her case at no charge. She expressed a great deal of gratitude but ultimately, after experiencing some additional turmoil, decided to plead guilty because she “could not handle court." What I want to convey is that this woman genuinely believed she was not guilty, had an attorney offer to review her case FOR FREE, and she plead guilty anyway. 6th Amendment – Right to counsel The 6th amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to…have the Assistance of Counsel for his defence." At the outset it is important to understand what a “criminal prosecution" is. A “criminal prosecution" is when a prosecutorial agency (i.e. City Attorney, District Attorney, Attorney General, United States Attorney, etc) has filed a complaint against a citizen alleging that they’ve committed a crime. A quick rule of thumb to determine whether or not any given law is criminal is whether or not it is punishable by ANY amount of time in jail/prison. There may be some exceptions but, as I said, this is a good rule of thumb. Although a person almost always has the right to be represented by an attorney, “criminal prosecutions" are unique; which is evidenced by their specific reference in the 6th amendment. “Criminal prosecutions" are unique because on the one hand you have the executive branch of government with its vast authority and apparent limitless resources threatening the life/liberty of the accused, and on the other, an individual citizen who, often times, is already being condemned by his/her peers due to publicity. In 1963 the United States Supreme Court, in addressing the importance of counsel in criminal prosecutions said, “[a criminal defendant] requires the guiding hand of counsel at every step in the proceedings against [them]. Without it, though [they] be not guilty, [they] face the danger of conviction because [they do] not know how to establish [their] innocence." As one who is intimately involved in criminal prosecutions I completely agree with the sentiments of the Supreme Court. Additionally, we must all understand that there is more at stake than just any one person’s interest in any given case. Every time a person is prosecuted and the government agents involved were lazy, corrupt, or just plainly wrong, and those persons do not contest it a precedent is set for the next person. It sends a message to our government; “We don’t care that you are lazy, corrupt, or plainly wrong. You may continue doing what you are doing." A good analogy highlighting this concept would be in how a child tests the rules of their parents. The child will engage in behavior violating the rule so long as the parents permit it. If the parents do nothing to enforce the rule there is no reason for the child to adhere to it. So it is with our government. The government has been given rules but if we, the citizenry, do not assert our rights then the government will progressively continue to violate them. As a prosecutor I once had an officer request criminal charges against a person for a criminal code section that did NOT exist. I am confident that there are prosecutors who’d have charged the person for the alleged crime that did NOT exist. I am also certain there are people who’d have walked into court at their arraignment and plead guilty to the alleged crime that did NOT exist. Having the assistance of competent legal counsel is a fundamental right we may assert to help encourage/compel our government to “play by the rules." Going back to the woman who opted to plead guilty to a crime she believed she did not commit; what has she gained? Practically speaking – nothing. What has she lost? Probably a couple hundred dollars in fines & fees while acquiescing to a government that may have been prosecuting her wrongfully. This acquiescence encourages the government to maintain the status quo and acquiescence to an overreaching government is not conducive to maintaining liberty.
If you find yourself on the defending end of a “criminal prosecution" I encourage you to assert your rights. Find a lawyer you can trust (no snickering – they are out there) and see if they’ll give you some feedback on your case. It doesn’t matter whether it is a felony, misdemeanor, or infraction/violation – do NOT acquiesce - our liberty is at stake. I will end with the following quote:
“I apprehend no danger to our country from a foreign foe ... Our destruction, should it come at all, will be from another quarter. From the inattention of the people to the concerns of their government, from their carelessness and negligence, I must confess that I do apprehend some danger." Daniel Webster, June 1, 1837
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