Why bother?

In Horry County, the public defender’s office refuses to appear at any preliminary hearings, and the magistrates refuse to allow the public defender clients to go forward without their attorneys – the two together amounts to a systemic denial of due process for a majority of criminal defendants in Horry County. 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:

§ 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. . . .

Sitting in preliminary hearing court last week I saw a typical example – there was a decent sized crowd of people sitting in the audience, and a small group of inmates sitting in the jury box, with sheriff’s deputies standing guard nearby. There are two jury boxes, one on each side of the courtroom – on the right side are the inmates and on the left side is a group of 10 – 12 officers, some sitting in the jury box and some standing. Two prosecutors stand at the table on the left, talking with officers and attorneys who are trying to get out of there sooner rather than later. There are no public defenders in the room. There are three private defense lawyers apart from myself, and two of those quickly waive their clients’ prelims and leave.
The magistrate assigned to handle prelims today comes out and takes a seat on the bench, makes some opening remarks explaining what a preliminary hearing is, and then launches into a review of the docket for the morning. As one of the prosecutors begins to call out the first names on their list, the judge asks her to stop, notes that this will save some time, and asks for anyone who is represented by the public defender to stand up.
One at a time, the judge identifies those who have applied for a public defender – it quickly becomes clear that none of these individuals have spoken to their attorney, although they have filed their application for a public defender it is still early in their case and many do not even know their attorney’s name. As each person identifies his or herself, the judge explains that the public defender does not do preliminary hearings and therefore that person’s hearing is waived. One at a time, they walk out of the courtroom, confused and angry. Towards the beginning, two of them try to argue with the judge, explaining that they are prepared to go forward without their lawyer, but the judge refuses, explaining that if their attorney says their hearing is waived then it is waived. Have a nice day.
I understand the Court’s reluctance to let defendants proceed pro se – when a defendant tries to handle their own preliminary hearing it is usually something like a train wreck. The officer testifies, then the defendant tries to tell the judge what really happened, rather than asking questions of the officer. The Court has to repeatedly cut off the defendant and explain that they are not there to testify and they can only ask questions. The defendant doesn’t know what questions to ask or how to ask them, they only want to explain their side of things and they do not understand the process.
But I do not understand the refusal of the public defender’s office to even appear on behalf of their clients – regardless of the public defender’s personal view of the efficacy of preliminary hearings, it is a critical stage of the proceedings, it is a right guaranteed to every defendant by statute, and the denial of preliminary hearings to every indigent person in the county is a systemic denial of due process. In my opinion, each public defender who does not appear on behalf of their client, whether the boss has ordered it or not, is committing malpractice.

There is no downside to preliminary hearings
– no harm comes to the defendant, they cannot go to jail if they lose, their charges cannot be increased if they lose. Many lawyers will say they are a waste of time – they will tell you that magistrates never dismiss a case at the prelim, and even if they do dismiss the case the solicitor’s office can still have the case indicted by the grand jury. But the truth is, cases do get dismissed at prelims. Some cases are terrible, some arrests should have never been made, some magistrates can recognize this and they will dismiss when there is no probable cause. When the case is dismissed, sometimes the assistant solicitor on the case takes the time to look at why it was dismissed and they leave it that way.
When the case is not dismissed, or if it is dismissed and the solicitor indicts it and revives the charges, the benefit is still obvious. We now have a transcript of the officer’s testimony, early in the case, as to what the evidence will show. The officer is now locked into that testimony and the transcript can provide invaluable impeachment material for trial if the officer tries to change the story when trial begins. It also gives us a picture of who the officer is, how they will testify, will they lie on the stand, are they evasive, or are they straight up and honest. All of which is invaluable if this case goes to trial.
Which tells me there are two reasons why attorneys waive preliminary hearings – 1) they are lazy; and/or 2) they have no intention of taking their client’s case to trial. Who cares what the officer’s testimony is going to be if I know I am never going to try the case.
Or, in the case of the public defender’s office, perhaps the reason is because they are too busy. Is it because case loads are too high, we don’t have sufficient funding to hire enough public defenders to handle the case load, and so we must perform triage, trimming the less essential parts of representation? I understand that, I was a public defender once, and I empathize. But nevertheless – shame on you for abdicating your responsibility for your clients. If the problem is case load and time constraints, stop taking new cases. Period. Don’t screw the clients that you have and blame it on the legislature or anyone else. Refusing to appear at preliminary hearings, or neglecting any other part of client representation, is not going to get the legislature’s attention and inspire them to fund your office. They are cheering you, applauding the fact that more defendants will be found guilty. Some of them would cut your funding completely if they could.

10 Responses to “Why bother?

  • I agree. In conclusion, if you have or have even applied for a public defender, you do not have the right to a preliminary hearing.

  • Wow. Absurd and inexcusable. Whose right is it, by the way, to have a preliminary hearing?
    We have no such thing in CT, except in cases where you are exposed to life in prison. In those cases, a hearing in probable cause is held, and the right to have that hearing belongs exclusively to the defendant. We cannot waive it without his or her permission.

  • Unbelievable. I can empathize with busy and understaffed–until a couple of months ago, I was a PD too. I can’t imagine not having a preliminary hearing on a case that has a chance on going to trial.
    I’ve seen officers’ testimony change to fit the discovered evidence, and without a prelim tape, there’d be no way to impeach them. I’ve won trials because the testimony at trial differed significantly from the prelim testimony–the jury was convinced that the officer was untruthful.
    I don’t win many cases with a dismissal at the General Sessions prelim (6 out of hundreds over the course of the last 3 years), but I have won trials based on prelim testimony and have had DAs not indict because of the prelim testimony and have otherwise mitigated with lesser charges because of the prelim testimony.
    I’ve certainly waived my share of preliminary hearings–In TN, bond can be raised at a prelim, and there are other reasons to waive as well, but generally, my policy is prelims, prelims, prelims.

  • Wow.
    I love prelims (or their functional equivalent in other states). I can’t think of a better opportunity for discovery than an early hearing on the facts prior to trial.
    In some cases, I go for a dismissal (such as a he said/she said allegation of sexual assault), but those cases are in the minority as Gideon stated. Mostly, it’s all about discovery. That one hearing usually saves me from hours of phone-tag and heartburn in locating witnesses to interview.
    Sad. I especially feel for the folks who attempted to go at it pro se.

  • While I empathize with the budgetary problems of public defenders and OID in general, I agree. Squeeky wheel gets the grease. It’s time they started squeeking…

  • As a public defender in an office that does not waive prelims, I agree with you on the usefulness of prelims. However, as to the squeaky wheel getting the grease, we don’t have time to squeak. We don’t have time to do a quarter of the things we want to do in each and every case. We are in triage mode all day every day. We have been informed that refusing additional cases is not an option. I carry a caseload of 150 cases at all times, all of which are violent felonies, 45 of whom are in jail. When I go to trial, 149 clients suffer so that I can take care of one. In 4 years, my office has reduced the number of attorneys by a third, while the number of cases handled by the office has increased by at least a third. All the while, I put up with judges, solicitors and private attorneys who believe its okay to treat me and my clients badly, because I am just a public defender. I have been told that because I am public defender I don’t care, I don’t try, I can’t be a real lawyer, I should shut up and take it. I don’t see private attorneys offering to help with the plight of the public defender. I don’t see them offering words of encouragement. I don’t see them advocating on our behalf. They show up when they want to know if my client is going to testify against them, or if they want a copy of a motion or memo I have done or if they want dirt on a state expert and they show up when I have been sitting in court for 3 hours waiting to do a plea and bump me out of line because their time is more valuable than mine.
    If you have time to be outraged, why not lobby the legislature to get more funding for public defenders? Or forward your motions and memos to your local public defenders’ office? Or tell the solicitor, let the public defender who has been sitting in court all day do their plea before me? Should these public defenders be waiving all prelims? NO! Does something have to give somewhere within the public defender system? YES! Can private attorneys help? I don’t know, but please try. We are drowning!

  • I am advocating on your behalf. I’m not a lobbyist and that’s not my thing. But, how many people reading this work in government or know someone that does?
    I think that to follow the ethical standards, the rank and file public defender would have to refuse cases when they can no longer provide competent representation due to overload. In most offices, what would happen then is that someone will be hired, to replace them, that won’t refuse cases. Then how do you pay the bills?
    The leadership of indigent defense has to make sure that public defenders are not put in the position of choosing ethics and no job vs. ineffective assistance and a paycheck. Chief public defenders and up.

  • In my office, we have been told that if we leave, we will not be replaced because of the budget. Our cases will be spread over the remaining attorneys who are already overloaded. Where does that leave my clients? If I take the stand that you propose, I screw my clients even more. I care about my clients and can’t just abandon them. Its not just about a pay check.
    The problem is that the leadership is not making sure that public defenders are not put in that position and even when they try to take a stand, it is just a single voice and the voice of a public defender at that. No one else cares. Those private attorneys who have power and influence don’t seem to want to use it for public defenders or their clients. I appreciate you bringing attention to this, but you are one of few and I don’t see any relief in sight.

    8 years ago

    You are all confused. The purpose of the justice system has evolve into a job creation business. The guilt or innocence is no longer and issue. Once arrested jail is the rule. DNA, testimony is all just a formality. Public defenders do not and never had the budget of the prosecutors office. Maybe one day funding will be split 50/50 and the Public defender can actually defend people. As it stands the system works fine. The police officer guess who might be guilty, grabs them and they go to jail. Its not like the police are ever wrong. It is all in the procedure, as long as procedure is followed actual evidence is immaterial. American justice is a wonderful thing.

  • OMG I want to come and practice in the USA!!
    We don’t have anything like the prelim hearings you describe. The one and only chance we get to question witnesses of any kind is at the trial!
    We used to have committal hearings where cases going to the higher court would have the witnesses show up to give evidence but they were abandoned years ago and now the evidence isn’t even read through at committals!!
    No offence, but defending in the USA sounds pretty easy – you get to XX in advance of trial, you only need one juror to side with you to hang the jury, cases are thrown out because the arrest was unlawful!!!
    I need to move over there.

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