The American Constitution is a great document. The Constitution sets out the basis for the laws of our country. Laws we expect to govern and protect us. Sadly these laws and ideals often get "interpreted", used, abused, and ignored in ways that deprive us of our rights that we expect them to uphold. Recently, in particular, it has come to my attention that the "presumption of innocence until proven guilty" is an ideal that is not practiced by our courts and that the 6th amendment and our right to speedy trial can and is being ignored or misused by the American court system.
The first problem seems to be the ability of the defendant to obtain legal counsel. If you have money of course you can hire an attorney to defend you. If you are like most of the people in America, you probably cannot afford an attorney. Fortunately the US Supreme court has ruled (Gideon v. Wainwright (1963), Argersinger v. Hamlin (1972) and Scott v. Illinois (1979)) that the state must provide counsel to the accused, typically known as the Public Defender. However the quality of the counsel provided is questionable. As I watch a court case unfold, it becomes apparent, and is reflected in the derisive titles applied to the Public Defender by defendants, such as the Public Pretender, that there is no actual defense of the case. Instead these state appointed counsels seem to have become an arm of the prosecuting attorney's office guiding and advising the defendants to take plea bargains whether they are guilty or not. Folks, that is not adequate legal counsel.
The second problem stems from how "Speedy Trial" is defined in our laws. The 6th Amendment to the Constitution of the United States does not actually set a time frame for a "Speedy Trial"
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
This is left to the individual states. Although some states set clear time frames and rules for speedy trial with mandatory remedies at the expiration of that time, other state's laws are not as clear and are manipulatable. Let us take Florida's rules for speedy trail. The defendant must demand, in writing, a filed motion, and served on the prosecuting attorney, his right to speedy trial. This right to demand is further split into two parts.
At 60 days after arrest the defendant may file a Demand for Speedy Trial". A calendar call on this motion must be held within 5 calendar days of the filing of the motion. At the calendar call the court must set a trial date for no less than 5 days nor more than 45 days from the date of the calendar call. If the defendant has not been brought to trial within 50 days of the filing of the demand the defendant has the right to the appropriate remedy.
If no Demand for Speedy Trial was filed by day 175 of the defendants arrest and the defendant has not been brought to trial the defendant has the right to the appropriate remedy.
Now it is the "appropriate remedy" part that gets a little fuzzy. The remedy starts with, "No remedy shall be granted under this rule until the court has made the required inquiry under subdivision (j)." which is also coupled with the 1980 amendment (a)(2) (2) "Before the court can discharge a defendant, the court must make a complete inquiry to ensure that discharge is appropriate." Please note that in the remedy there is no provision for a time limit to the inquiry. The "required inquiry under subdivision (j)." seems all well and good except for part (2) "the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel. "
Now, if you have a private attorney none of this is a problem. The problem arises when you cannot afford your own attorney and a Public Defender has been appointed. It is not that a competent and honest Public Defender who actually researches and puts up a defense is a problem, it is, as it has come to my attention, that it has become common knowledge among the accused that the Public Defender is not going to work on a case and present a defense. Hence the name, " Public Pretender".
In the case that I have been observing, the Public Defender ignored efforts by concerned friends of the defendant to present evidence that the charge might be false. The Public Defender never discussed with anybody, the concerned friends or the defendant how he was planning to defend the case. The Public Defender advised the defendant to not demand a speedy trial at the 60-day mark, and ignored efforts to remind him that the 175 limits had passed. The Public Defender did present plea bargains to the defendant, and he did advise that the defendant should take the plea bargain. The Public Defender did advise the defendant to waive his right to speedy trial, on several occasions. However, The Public Defender, when pressed in court on day 196, did admit that he was not ready for trial. That is 6-1/2 months with people concerned with trial stressing their belief in the defendants innocence and continually asking about the defense and offering their testimony to defend the defendant, the Public Defender could only say he was not ready for trial.
Hence the defendant had no competent legal counsel, no defense when the case did go to trial, and was in no way treated as "innocent until proven guilty." Rather he was treated by the judicial system as guilty and to be conditioned to take a plea bargain and entered into the system. The "Right to Speedy Trial” was downplayed to him as a way to condition him for plea-bargaining and allow the defendant to languish in jail until such a time, as he would take a plea bargain. The final peg in this system of rights abuse is that the Public Defender, by all observations, was never going to put a defense together so that if the Speedy Trial right was pressed, a totally insufficient defense or no defense would be presented resulting in the defendant being convicted. Guilty or innocent!
Some readers may doubt my words and observations. Others may recognize the pattern in a case that concerned a friend, relative, or even themselves. It is to these people I address my next words.
If you have been improperly represented by a Public Defender or know of a case that fits a like pattern of abuse, please e-mail a description and case number to
legalrights@appropriatetonothing.net
If we do not fight rights abuse now, we will be fighting it individually as defendants!
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