Gilbert Cranberg has an editorial in the Des Moines Register proposing that every person charged with a felony in the state of Iowa be forced to have a lawyer whether they want one or not. The premise: "Greathouse, like the average person, was not competent to decide whether he should have an attorney to represent him."



At risk of alienating criminal defense attorneys' pocketbooks, I respectfully disagree.



The case cited by Cranberg hails from 1957. A judge who was unfamiliar with the sentencing laws insisted that life was mandatory for bank robbery, and sentenced a man accordingly. The Des Moines Register pointed out that the law had changed to allow for sentences as little as ten years, and pushed for resentencing:



"We soon heard from the sentencing judge; he insisted that life was mandatory for bank robbery, and that he had recently sentenced to life terms not only Greathouse but two other Iowans who had held up banks. The Register editorialized further, the judge retracted, Greathouse was resentenced to 35 years, and then-Gov. Herschel Loveless commuted the life terms of the other two to 25 years. . . .In each instance, the defendants were told they have a right to counsel, but they reasoned, 'Why bother? I'm guilty,'. . . "



I agree that the case cited by Cranberg was a miscarriage of justice. But it was the judge who dropped the ball there. They have a duty to know the law, and to apply it justly. Fortunately, judges take this duty quite seriously and I am not surprised Mr. Cranberg had to reach all the way back to his original 1957 story to find such a travesty.



He did try to find a more recent example:



"The court last year went further, overturning a conviction because the accused who pleaded guilty without a lawyer had not been told that "there are defenses to criminal charges that may not be known by laypersons and that the danger in waiving the assistance of counsel in deciding whether to plead guilty is the risk that a viable defense will be overlooked."



This, of course is the State v. Tovar decision I blogged about back in March here and here.

Of course, Cranberg conveniently refrains from mentioning that the United States Supreme Court decided that the additional warning was not required by the constitution. Even a cursory review of the decision in that case shows that Tovar was amply informed of his rights:



The Court: We are on the record in the State of Iowa versus Felipe Tovar, Case No. 23989. This is the time and place set for arraignment on a trial information charging the defendant with operating while intoxicated. Mr. Tovar appears without counsel and I see, Mr. Tovar, that you waived application for a court appointed attorney. Did you want to represent yourself at today’s hearing?

Tovar: Yes, sir.

. . . .

The Court: And did you want me to read that information to you or did you want to waive the reading?

Tovar: Waive the reading.

The Court: And how do you wish to plead?

Tovar: Guilty.

. . . .

The Court: All right. Gentlemen, if you continue with this desire to plead guilty, there are certain rights that each one of you will be giving up and I now will explain those rights to you. First of all, if you enter a plea of not guilty, you would be entitled to a speedy and a public trial by jury. But, if you plead guilty, you give up your right to have a trial of any kind on your charge. . . Do you understand that, Mr. [Tovar]?

Tovar: Yes, sir.

. . . .

The Court: If you would enter a plea of not guilty, not only would you have a right to a trial, you would have a right to be represented by an attorney at that trial, including a court appointed attorney. That attorney could help you select a jury, question and cross-examine the State’s witnesses, present evidence, if any, in your behalf, and make arguments to the judge and jury on your behalf. But, if you plead guilty, not only do you give up your right to a trial, you give up your right to be represented by an attorney at that trial. . . . Do you understand that, Mr. [Tovar]?

Tovar: Yes, sir.

. . . .

The Court: Gentlemen, those are the rights that you will be giving up if you plead guilty. Knowing that, did you still want to plead guilty? . . . . Mr. [Tovar]?

Tovar: Yes, sir.



Those warnings wouldn't be sufficient to protect Tovar from a misinformed judge who misapplied the law, as in the Greathouse case. But if you have that kind of a judge, not even a lawyer could have prevented the original incorrect sentence from being handed down. Greathouse had a judge who insisted he knew the law when he clearly did not. All an attorney can do for a client under those circumstances is register an objection, try to reason with the judge, then file an appeal. When you look at it, that is exactly what happened to Greathouse. The paper tried to reason with the judge, and eventually the man was resentenced. So the entire premise, that having an attorney would have prevented the Greathouse miscarriage of justice, is false.



But I can hear the Register op-ed guy now: what's the harm? Why not require lawyers to represent clients on every felony? Two reasons. First, lawyers cost money. A lot of money. Even "court-appointed" lawyers are $50 per hour, which the defendant must pay back to the state as part of his or her sentence upon conviction. For many Iowans, that's an astronomical sum. There are an entire host of crimes that are technically felonies - the State v. Tovar case was a third offense Operating While Intoxicated. These are not all life imprisonment charges, the vast majority are a two year term, if it's not suspended in favor of probation. When faced with the level of fines and jail costs involved, a defendant who knows he or she is guilty may choose to forego the additional legal expense, particularly if the prosecutor has agreed to recommend a suspended sentence to the Court. They have the right to do so. Which is my second reason. Charles Manson was pro se for some time during his trial. So was the subway bomber (whose name currently escapes me). They were facing life in prison. They chose to proceed pro se. According to precedent, we actually have the right to defend ourselves rather than relying on someone else to do it for us, so long as we are mentally competent.



The Des Moines Register puts the entire article in terms of "giving" people a lawyer or "allowing" them the right to consult with counsel. The article fails to mention that this proposal would actually "force" people to have a lawyer whether they wanted one or not. Because I believe in each person's right to do as they choose so long as it doesn't infringe on other people, I have a hard time justifying taking away the right to self-representation on the presumption that "the average person, was not competent to decide whether he should have an attorney to represent him."