Looking back, it seems like about once a year I write a blog post about how our local public defender has done away with preliminary hearings for indigent clients. It is still happening, and nothing has changed.
I don’t know what public defenders in other parts of the state are doing, but the 15th Circuit Public Defender’s Office waives all preliminary hearings for all of their clients, without consulting the client, without informing the client, regardless of whether the client insists on going forward, and apparently without even telling the clients not to appear at the preliminary hearings.
Preliminary hearing court this morning was typical – before beginning, the solicitor assigned to handle the prelims went through the docket and called each case one at a time, identifying the public defender clients who were present and informing them that their attorney has waived their preliminary hearing and that they are free to leave. That is most of the defendants in the room. Usually at least one puts up some resistance and informs the Court that they are not waiving their preliminary hearing and that they want to go forward with or without their public defender; today was no different.
The Judge informs them that they cannot go forward – they are represented by counsel and their attorney has waived their preliminary hearing. They need to contact their attorney and speak with them, and the Court cannot tell them anything more because they are represented by counsel. Several of the public defender clients point out that they have had no contact with their attorney, but this doesn’t change the analysis – the Court’s hands are tied.
I doubt that each individual public defender has contacted the Court and waived their client’s preliminary hearing. Rather, the Public Defender’s Office has notified the Court that all preliminary hearings are waived. Our local public defender has effectively done away with the right to a preliminary hearing for all indigent defendants in our circuit.
Why does it matter? What is a preliminary hearing? It is hearing before a magistrate, to determine whether there is sufficient probable cause for the case to go forward. It is a statutory right that applies to every person accused of a General Sessions level crime in our state:
§ 22-5-320. Defendant’s demand for preliminary investigation; appearance by attorney
Any magistrate who issues a warrant charging a crime beyond his jurisdiction shall grant and hold a preliminary hearing of it upon the demand in writing of the defendant made within twenty days of the hearing to set bond for such charge; provided, however, that if such twenty-day period expires on a date prior to the convening of the next term of General Sessions Court having jurisdiction then the defendant may wait to make such request until a date at least ten days before the next term of General Sessions Court convenes. At the preliminary hearing, the defendant may cross-examine the state’s witnesses in person or by counsel, have the reply in argument if there be counsel for the State, and be heard in argument in person or by counsel as to whether a probable case has been made out and as to whether the case ought to be dismissed by the magistrate and the defendant discharged without delay. . . .
My opinion is that the preliminary hearing should rarely, if ever, be waived – you lose nothing by going forward with a preliminary hearing. The officer takes the stand and testifies under oath, and, whether the case is dismissed or not, there are times when that testimony is invaluable and can result in a dismissal later, or it can be used to impeach the officer at trial if they try to change their testimony later.
Sometimes the case is dismissed – if it is dismissed the solicitor can still send it to the grand jury for indictment, but sometimes they do not. If they don’t, the case is over. If it is dismissed based on a lack of probable cause, rather than the officer not showing up, it’s a pretty clear sign that the solicitor will not get a conviction at trial, where the standard is beyond a reasonable doubt instead of probable cause.
The preliminary hearing can be waived. The defendant can not request a preliminary hearing at all. But this is the client’s choice, not the attorney’s. It is the client’s right to a preliminary hearing, and, although the attorney can advise a client to waive the hearing, the right does not belong to the attorney, it belongs to the client. Similarly, an attorney can advise a client to waive their constitutional rights and plead guilty to an offense, but it is not the attorney’s decision.
An attorney can waive a preliminary hearing at their client’s request after talking with the client about what they are giving up and the attorney’s reasons for giving it up, but an attorney can’t simply refuse to have hearings for all of their clients across the board. I say they can’t, but they do, and it doesn’t seem to bother anyone but the defendants who feel that they are getting screwed.
Every time I write a blog post that addresses indigent defense issues, I get accused of beating up on the public defenders. I really don’t care – if you’re a public defender and you are offended by a post like this, my opinion is you are probably one of the offenders. If you are a public defender and you are not trying to change the system that you work in, whether it is to find more resources, to reduce your case load, or simply to refuse to shit on your clients no matter what your instructions are from your boss or the office of indigent defense, you are the problem as well. The denial of the right to a preliminary hearing to all indigent defendants in two counties is a systematic denial of due process, more pervasive and offensive than most problems we complain about in the solicitor’s office or the police department.
And yes, I am content to snipe from the sidelines and complain about what you are or aren’t doing. I suspect if I worked in your office, I would have to quit or be fired to comply with the ethics rules that govern attorneys. On the other hand, if you see a way that I can help you, my door is open and I welcome you to call or email me.