By now, most Americans are familiar with the Miranda Warning, also known as the Miranda Rights. Upon arrest most police officers will read you the following, and mean it.
You have the right to remain silent.
Anything you say or do may be used against you in a court of law.
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
That’s the way American justice works, unless you happened to live in Texas. The Sixth Amendment Center announced that Williamson County, Texas settled a class action suit brought by Texas Fair Defense Project who alleged “… that the county failed to “inform persons accused of crime of their right to counsel,” provided “inaccurate and misleading information about the right to appointed counsel in order to discourage requests for counsel,” encouraged defendants “to waive their right to counsel and speak directly to prosecutors,” and threatened defendants who “asserted the right to counsel” with financial sanctions, while delaying or denying appointment of counsel to individuals who were “eligible for court-appointed counsel under Texas and federal law.”
The Sixth Amendment Center article on the settlement describes what defendants in Williamson County typically faced. “As alleged in the lawsuit, the court’s arraignment docket for in-custody defendants begins when the “presiding judge orders a bailiff to bring a few of the accused out to the courtroom at a time” where they “are taken to a table in order to speak to a prosecutor about their case.” The prosecutors proceed to discuss plea deals with unrepresented defendants, including suggesting they each waive their constitutional right to counsel. All of this occurs before the defendant has an opportunity to address the court and ask for counsel. If the defendant agrees to waive counsel and accept a plea deal, then the court will formally arraign the defendant to enter the plea.
Those that still want counsel are told that “they will be ordered to pay the cost of appointed counsel at the conclusion of their cases and that appointed counsel therefore is not really free. The presiding judge does not explain to the accused that they will not have to reimburse the state for the cost of court-appointed counsel if they cannot afford to do so or that the cost of appointed counsel cannot be assessed if the accused is not convicted of the charged offense.” Fearing excessive legal fees that they cannot afford, many defendants who want counsel decide not to invoke their right to counsel. At no point in the process is there a defense lawyer present to consult or advise the defendant.
A similar process is employed for out-of-custody defendants…, though there is an added wrinkle. A bailiff is standing at the door to the courtroom and tells people attempting to enter the courtroom that only persons with cases on the docket are allowed in the courtroom. The bailiff tells family members of the accused and members of the public that they are not allowed to be present during the court proceedings.” This means that a family member cannot view the coercive approach to uncounselled plea negotiations or assist the defendant in deciding his fate.”
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