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Study cites due process violations in low-level courts as Charleston officials tout ‘groundbreaking’ improvement

By Andrew Knapp, The Post and Courier

In some South Carolina courts that face crushing workloads, many defendants accused of low-level crimes are often judged swiftly without learning about their basic constitutional rights, a study by a national lawyers group revealed.

These people usually act as their own attorneys but are rarely informed of the consequences or given the opportunity to challenge the witnesses testifying against them, the statistical analysis by the National Association of Criminal Defense Lawyers found.

Take Charleston County, where judges in all 81 of the municipal and magistrate cases analyzed told defendants of their right to an attorney. But in 20 percent, that didn’t include an offer of a public defender if they couldn’t afford a private lawyer.

Most defendants — about 90 percent of the cases studied in five counties — opted to go without an attorney anyway. And in Charleston County, the defendants were told only 45 percent of the time that they could cross-examine opposing witnesses.

Others pleaded guilty without realizing the damning implications.

The resulting system can short-change the already impoverished people who often appear in South Carolina’s summary courts and leave others with criminal records that last a lifetime, said Barry Pollack, president of the Washington-based lawyers group.

“It lulls people into believing that they can plead guilty without an attorney and that their penalty is going to be minor because the offense is minor,” he said. “There are thousands upon thousands of people who are pleading guilty … without ever being told of the hidden consequences.”

The report focused on summary court proceedings in Charleston, Richland, Spartanburg, Orangeburg and Florence counties over three months in early 2016. Law students and professionals observed the hearing and collected data for the 47-page report, “Rush to Judgment.”

Researchers attributed their findings in part to a burdened system that values efficiency over due process and allows proceedings to unfold without a single lawyer involved. State law doesn’t require magistrates to have a law degree, and police officers usually prosecute the defendants themselves — in 89 percent of the cases studied.

The hearings’ average time: 3.29 minutes.

It’s an assessment that many authorities, including Charleston County Chief Magistrate Ellen Steinberg, consider unfair. Such concerns, though, have already prompted change.

In a collaboration with the American Civil Liberties Union, a similar report by the group last year highlighted a lack of public defenders for bond hearings, which also happens in summary courts. Starting in March, Charleston County will assign government defense lawyers for the first time to most defendants who need them before the proceedings.

“This is absolutely groundbreaking for South Carolina,” Steinberg said. “It’s a game-changer.

“Seeing this latest publication, it’s something we’ll pay attention to. … But every single case that appears in front of a judge is taken seriously.”

Ninth Circuit Public Defender Ashley Pennington said that effort was “long overdue,” but the study shows other problems remain.

“Most citizens’ interaction with the legal system and their view of whether that system is just is defined by walking into magistrate or municipal court,” he said. “Wouldn’t doing something about this go a long way to restore people’s overall confidence in the system?”

‘Needs to be oversight’

The researchers focused on the five counties after gathering anecdotes that were cause for some concern, they said. These stories often involved poor defendants who represent themselves and get slapped with thousands of dollars in fines and fees for minor offenses, such as shoplifting.

They did not visit Berkeley or Dorchester counties, but they said problems generally worsened in the more rural areas.

Summary courts typically handle defendants who face smaller fines and no more than 30 days in jail. Any person facing jail time — no matter how brief — and cannot afford an attorney should be able to get a public defender, a constitutional right established in a U.S. Supreme Court ruling a half-century ago.

Statewide, the study found that defendants were informed of such right 84 percent of the time. At 70 percent, Charleston County lagged behind. Orangeburg County was the most problematic: Only 7 percent of defendants were alerted. In some cases, the observers recorded no information on whether the right was given.

Defendants’ decisions to represent themselves often did not trigger further cautioning from a judge, called a “Faretta warning” after the court ruling that helped establish the process.

Judges in Richland County aired the accused’s right to question prosecution witnesses in 87 percent of the cases. But that fell to 55 percent in Charleston County, and 0 percent in Florence and Orangeburg counties.

The observations were made in different court sessions, so it’s less likely the statistics are an anomaly, said report author Alisa Smith, a legal studies professor at the University of Central Florida. They indicate that the rights of many people are being jeopardized in these courts every year, she said.

“There was a lack of information that pervaded the system from the very beginning to the very end,” Smith said. “Obviously, there needs to be lawyers in these courtrooms. There needs to be oversight to make sure no mistakes are made and no constitutional violations are occurring.”

‘Like nothing … happened’

The report recommended a new state law to require county magistrates and municipal judges to be lawyers. Currently, they are appointed by city councils and by the governor with input from state senators. They must pass a critical thinking test. A legislative proposal this year would give the Judicial Merit Selection Commission some oversight on the appointments.

Judges with a law license heard 93 percent of the cases in Richland County, 67 percent in Charleston and 4 percent in Orangeburg.

With police officers often acting as prosecutors and as witnesses, defendants in a quarter of the cases never interacted with a single lawyer. That meant they were even less likely to understand their rights and what was at stake, said Colette Tvedt, public defense training and reform director at the lawyers group.

About 58 percent of Charleston County cases ended with a plea of guilty or no contest, surpassing the statewide level of 41 percent.

When they were prosecuted by the officer who arrested them, defendants were three times more likely to enter those pleas.

“There should be an assurance that every defendant is advised of their rights before that decision,” Tvedt said. “And they need to be aware of the consequences of a guilty finding and how that can impact their lives.”

In more serious cases in General Sessions Court, judges typically go through a litany of warnings when someone pleads guilty. In summary courts, though, the study indicated some of those rights and warnings were given out at the start of proceedings to a crowd of defendants with little individual follow-up. In Richland County, a video delivered those rights, but defendants often did not pay attention, the researchers said.

That’s not the case in North Charleston Municipal Court, which was part of the study, said city attorney Derk Van Raalte. While city judges read the rights in front of everyone to start, they renew the notice as each case is heard, he said. The city court’s practices, he said, put it largely “ahead of the curve” of others in the state.

As an attorney in the Charleston area, David Aylor said many people wind up in summary courts after getting tickets for crimes like minor drug possession. He has seen how they can get caught up in the courtroom bustle and, eager to resolve their cases, plead guilty.

Serving as a part-time prosecutor in Hanahan Municipal Court, Aylor said he also struggles to make sure defendants’ rights are preserved without acting as their legal adviser.

“Even if they’re told of their rights, they don’t have a good understanding of them without an attorney present,” he said. “They’ll plead guilty and feel like nothing really happened because they just paid a fine, like a traffic ticket. But it’s actually a criminal conviction.”

Some hire Aylor later, saying they didn’t know what they were doing at the time. By then, it’s often too late.

‘Working on it’

The study’s authors recommended that South Carolina come up with a uniform procedure for summary court judges to advise people of their rights and the ramifications of guilty pleas. The “Summary Judges Benchbook” on the state Judicial Department’s website lays out those concerns, but it’s not written for everyday use.

Fines and fees also should be reduced, the group suggested, and the courts should record data on whether defendants are advised of their rights and have access to a lawyer.

Locally, the Charleston County Criminal Justice Coordinating Council has made strides to address some issues, Project Director Kristy Danford said. Many others are up to the Legislature.

Under a MacArthur Foundation grant, three new “pretrial analysts” will start interviewing defendants before bond hearings this spring to make sure they understand their rights and to determine risk factors that judges consider during the bail setting. A public defender then will represent eligible defendants during the proceeding and stay on their case until it’s done, Danford said.

Steinberg, the chief magistrate, called the initiative “exciting” but said it’s only part of the effort to improve the local justice system.

“When all the summary judges get together, we always talk about how absolutely vital it is that all defendants are advised of their constitutional rights,” she said. “We are working on it.”

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