Fight ‘Em ‘Til We Can’t

Picking up on my offhand comment in the last post that the SCOTUS recently said the right to counsel begins at initial appearance: The decision came down in June in Rothgery v. Gillespie County. I haven’t yet been ambitious enough to read the full decision, but according to the lengthy summary from SCOTUSblog, all that case said is that the right to counsel attaches at initial appearance. What that means, e.g., how quickly after initial appearance a person must have access to counsel and for what types of hearings or purposes, remains unclear. However, it appears the case does not say that a person has a right to have an attorney present at initial appearance. That sounds like bullshit to me, but there you have it. Your right “attaches” there; what “attaches” means in practice remains open to interpretation, apparently.

Here’s what the test should be: Are you in jail? If so, you have a right to an attorney at any and all appearances before a judge and at any and all interactions with law enforcement (other than jail staff; that would be unworkable). Of course, you can waive that right, and many people do, but that’s a nice bright line. If you’re not in jail but have been ticketed or given a notice to appear, you should be informed of your right to counsel along w/the citation/notice and given instructions for contacting the public defender for advice prior to initial appearance. This could be handled nicely by making sure there a public defender was present at all initial appearances, but I won’t be holding my breath for that one.

Today’s Billings Gazette features a front-page exposé of the problems in Stillwater County Justice Court. It seems the justice of the peace has regularly held one-on-one arraignments at the county jail for maybe 20 years. These are arraignments that are basically secret—she does not inform the prosecution or any potential defense counsel that she’s going to hold the arraignments. She holds them randomly; often on weekends and holidays.

What SCOTUS decision of the last term said the right to counsel begins at initial appearance? If I were a good blogger, I’d look it up and tell you, but it’s there. Nearly every court of limited jurisdiction in Region 9 of the Montana State Office of Public Defender regularly holds initial appearances in a similar way — randomly, without notifying prosecution or defense. Sure, the judges advise the accused of their rights, but that’s very different from making sure the accused has access to an attorney right then and there.

The Gazoo article also highlights the problematic practice of these courts initiating revocation procedings sua sponte and again w/o notifying defense or prosecution. The law in these areas seems clear that these practices are not legal, yet they go on day after day. Oh, and how does the public feel about it? The Gazoo readership sees no problem here. Welcome to Montana! Yeeehaw!

Coming out of hiding to link to three articles on Billings Municipal Court and its supervised probation and pre-trial supervision practices. The first attempts to give a big picture overview. The second focuses on one person who was subjected to the injustice of pretrial supervision for a misdemeanor DUI charge. And the third examines who is making money from the court’s regular practice of requiring citizens to pay for “supervision” for a multitude of misdemeanor offenses.

This isn’t the first time this court has received this kind of criticism (see also), and it won’t be the last.

Missoula has just become the second Montana city (Billings being the first) to start using GPS shackles to ” track accused – or convicted – offenders.” Apparently, Missoula’s system is going to be an “active” or real-time tracking system, while the system used by Alternatives, Inc., in Billings is “passive,” meaning it only uploads data to officials when the shackled person plugs the unit into a base station at home. The Municipal Court is the only court that really ever orders the shackle in Billings (knock wood).

While it’s true that these shackles may be a way to reduce jail overcrowding, there are often better, cheaper, more just solutions to that problem. As the article notes:

the solution to the Missoula County jail’s overcrowding problems is not as simple as strapping a tracking device to an offender’s ankle. Part of the solution includes encouraging law enforcement to cite and release more offenders, providing those who are jailed with more opportunities to post bail, and increasing the limited number of offenders who qualify for supervision within the community.

Kudos to Chelsi Moy and The Missoulian for pointing that out. The legislature could also help out by revising some misdemeanor statutes to remove jail time from the list of possible penalties—replace it with community service, fines, or other penalties. (This would also have the effect of reducing public defender caseloads, thus saving taxpayers money on multiple fronts.)

Two things the article does not make clear are: 1) who is paying for this “service”? and 2) How many people are being ordered to wear these shackles before trial? In Billings, if you’re one of the lucky 20-30 people wearing a shackle at any one time, you may have the pleasure of paying $150/month as a base cost for the privilege, plus you’ll definitely pay $15/day for every day you’re ordered to wear the thing. Payment due a week at a time, one week in advance, please. Oh, and if you don’t pay, the Municipal Court will gladly cooperate with the request from Alternatives, Inc., to throw you in jail. Nevermind that it’s illegal for you to go to jail just for being poor. Yeah, forget about that.

The other thing that happens in Billings is that the Municipal Court frequently orders innocent people to wear these shackles while they are awaiting trial. So, in addition to paying a bond to get out of jail (because almost no one a too few of those arrested in Billings gets a Notice to Appear — everyone goes a large number go to jail first and must pay bond; release on a person’s own recognizance is exceedingly far too rare), if you’re accused of a misdemeanor in Billings you might also have to pay $450-600/month for the privilege of being in the community while you await your trial. And that’s not to mention the indignity of having your every move tracked by satellite. So much for the presumption of innocence!

Here’s hoping Missoula doesn’t adopt these abhorrent practices as it begins using its own version of these shackles.

Ed. Note: This post edited as shown above to reduce hyperbole.

This is old news but for the record, the Montana News Association (MNA) ran a story in March criticizing Billings Municipal Court Judge Mary Jane Knisely for ordering too many people to sign up and pay for pretrial supervision. Although I agree that pretrial supervision is being abused in Billings municipal court, at least one of the complaints of the MNA appears to be a bit misguided. The MNA suggest that the statutory authority for pretrial supervision gives the court authority to order such supervision only in PFMA or stalking cases. The MNA writes that:

Judge Mary Jane Knisely regularly orders defendants charged with non-PFMA or stalking-related offenses to pretrial supervision, which costs them, easily, hundreds of extra dollars, in addition to the costs they have to pay, if they are found guilty.

The only statutory authority for pretrial supervision (as far as I know) comes from 46-9-108(1)(f), MCA, where it is listed as one of many conditions a court may impose in order to “reasonably ensure the appearance of the defendant as required or that will ensure the safety of any person or the community.” Thus, the statute does authorize pretrial supervision for any bailable offense.

That said, it is absolutely true that far, far too many people who face charges in Billings Municipal Court are being ordered to submit to pretrial supervision, and it is also true that the private pretrial supervision agencies charge unconscionable fees for their “services.” The MNA’s other criticisms of these private agencies — e.g. that they bully and threaten their clients and conduct random UAs and BAs w/out authority to do so (in order to make more money, no doubt) — certainly seem accurate, as well.

UPDATE: See also: Pre-trial supervision fees unfair and counterproductive

John McFadden, a Billings bail bondsman, has begun what has the makings of a campaign to reform the way muni court judge Mary Jane Knisely sets bail and other pre-trial conditions of release. Last November, McFadden first wrote a letter to the editor of the Billings Gazette criticizing pre-trial supervision as more or less a form of blackmail that encourages defendants to plead guilty in order to avoid or end the onerous fees involved. McFadden is equally critical of the fact that private companies are making substantial profit from the misery of these defendants, as well as what appears to be the “I’ll scratch your back” way Judge Knisely doles out the business to these companies.

Last week McFadden wrote another letter to the editor listing eight flaws in the way Billings’ municipal court operates, including:

1. Ordering citizens to pay to be “supervised” by supervisors who have committed fraud (DV 05-1199).
2. Collecting “bond” payments and then converting these “bonds” into “fines” without a hearing.
3. Leaving citizens in jail for hours, days and even weeks after posting bond.
4. Jailing minorities because they are unable to pay “supervision” fees while waiting for their day in court.
5. Forcing citizens to submit to 24-hour unannounced searches and urine analysis before trial.
6. Routinely employing individuals who are not elected to act in Judge Knisley’s stead, at taxpayers’ expense.
7. Giving citizens no choice in determining from which company they must purchase court-ordered services.
8. Responding with an adversarial attitude toward complaints.

McFadden’s letters have produced a vocal response in the newspaper’s comments section, and he is following up on his own website by asking for stories and comments from concerned citizens.

A few critics have questioned McFadden’s motives, suggesting he is bitter about something and is therefore attempting to strike back at the court. They may be right: many of the things McFadden criticizes (pre-trial supervision, time-pay bonds rather than secured bonds, etc.) probably do not help a bondsman’s bottom line. On the other hand, the problems McFadden identifies remain problems, regardless of his motives for speaking out.

How are things in your jurisdiction? Does your misdemeanor court routinely set bonds at 5-10 times the amount of the largest fine allowed by statute for the alleged crime? Are your misdemeanor bonds frequently higher than the bonds set in your felony courts? Are people accused of misdemeanors in your jurisdiction coerced into pleading guilty by onerous pre-trial “supervision” fees (for electronic monitoring, drug testing, etc)? Do the cost of those fees vary as much as 100% depending on which “supervision” company you’re assigned? Is Billings municipal court the source of the problems, or is this sort of thing pervasive statewide?