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Basic constitutional rights still denied in misdemeanor courts

Basic constitutional rights still denied in misdemeanor courts


If there’s a chance you could wind up in jail, you have the right to an attorney whether or not you can afford one. The U.S. Supreme Court has reaffirmedand clarified this right more than once, in doing so making clear that it applies to both misdemeanor and felony offenses. Yet in Nashville, Tennessee, defendants in misdemeanor courts aren’t being informed of this basic right, and in some cases are outright denied a lawyer, according to a report from the American Bar Association.

A review of court records showed that between 2015 and 2016, roughly 80 percent of defendants in Davidson County weren’t represented by a lawyer when their charges were resolved, according to the report. When volunteer lawyers observed misdemeanor court proceedings in September 2016, they watched as prosecutors negotiated plea deals with defendants before they were informed of or had surrendered their right to an attorney.

The lawyers also discovered that judges and prosecutors repeatedly failed to ask defendants about their financial situations, assigning unmanageable fees and not informing defendants of the possibility to have those fees reduced.

This unconstitutional denial of counsel in Nashville’s misdemeanor courts is far from isolated. Across the country, indigent defendants facing low-level misdemeanor charges are routinely denied or not informed of their right to counsel. In May 2015, the problem was acknowledged at a bipartisan U.S. Senate Judiciary Committee hearing on the right to counsel for indigent defendants.

“The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day,” testified Sen. Chuck Grassley. “No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.”

Scenes described by the ABA report illustrate a daily reality playing itself out in overburdened state and local justice systems. Defendants are shuffled through courtrooms like parts on an assembly line, with efficiency taking precedence over justice. Prosecutors were observed discussing plea deals with groups of as many as five defendants at a time, rushing them through an opaque process without explaining the consequences of opting for a guilty plea.

Public defenders were not present in the courtrooms observed by the volunteer lawyers, and judges didn’t explain what was at stake for defendants.

“I think it’s a situation where a judge is more concerned with the number of cases in his courtroom than making sure that the prosecutor is doing their job and the defendant’s rights are protected,” Joseph Ozment, president of the Tennessee Association of Criminal Defense Lawyers told ProPublica.

The ABA report on Nashville is the first of a “larger, national project to review practices in misdemeanor courts in other states throughout the country.” It’s far from being the first formal documentation of this pervasive problem, which is acknowledged in the report’s introduction. But in spite of ample evidence of the problem, Sixth Amendment violations in low-level courts persist.


Thanks to Jake Sussman.

A chance at freedom, barely

Louisiana State Penitentiary, otherwise known as “Angola,” where Henry Montgomery resides

A chance at freedom, barely


71-year-old Henry Montgomery has been in prison for over 50 years for his role in the shooting death of East Baton Rouge sheriff’s deputy Charles Hurt. But he now has a chance to see the free world. The petitioner in the U.S. Supreme Court case Montgomery v. Louisiana, which gave hope to thousands of people who thought they had no chance at redemption, finally received a parole-eligible sentence in July. He plans to apply for parole this year.

In Montgomery v. Louisiana, the Supreme Court held that Miller v. Alabama — which made automatic life-without-parole sentences for juveniles illegal — was retroactive. As a result, thousands of people sentenced to die in prison now have the opportunity to demonstrate to a court that they are not, in fact, “irreparably corrupt” and are capable of redemption.

Montgomery’s early life is a textbook example of the people who are facing resentencing after decades in prison — sentences that exceed what most adults convicted of murder receive. According to filings by Montgomery’s attorney, Montgomery had a childhood filled with physical abuse and neglect. His IQ at the time of his 1969 trial was estimated to be in the 70s. Since his time in prison, Montgomery has been a model inmate. The judge presiding over his resentencing, citing the recent changes in the law, begrudgingly agreed that Montgomery was not “irreparably corrupt.”

Hillar Moore, the current elected District Attorney for East Baton Rouge Parish, did not take a position during the hearing, instead focusing on the impact on the victim’s family. At the time of the Montgomery v. Louisianadecision, Moore told a local news program, “Disappointed by the decision, respect the decision, will follow the decision obviously, there will be no appeal to this decision.” Moore than added his concern that 17-year-olds would somehow commit more murders and serve shorter sentences in juvenile facilities. (Notably, Moore’s stated concern is not the actual holding of Montgomery, which simply held that most juveniles should be eligible for parole, not released after a short juvenile sentence.)

Moore’s fear-mongering gobbledygook is hardly surprising. Both the court and the district attorney were forced to follow the law, but they did so as half-heartedly as possible. This resistance is shared by other prosecutors across the state. Earlier this year, the Louisiana District Attorney Association blocked a recommendation that would have given all juveniles a chance at parole after 30 years (along with other basic reforms) which would have saved the state money and complied with the Supreme Court’s rulings.

And the state has continued to sentence juvenile offenders to life-without-parole: out of 23 eligible cases, Louisiana DAs have obtained life-without-parole sentences for 18 of them, a high rate considering that the sentence is supposed to be reserved “for all but the rarest of juvenile offenders.” Adding to the many challenges for those seeking a shot at freedom, attorneys assigned to represent individuals like Montgomery have limited resources; no additional funds were allotted for these time-consuming and costly investigations.

All of which is a disturbing portent for the sentencing outcomes for the nearly 300 inmates who are serving life without parole sentences for crimes they committed as teenagers in Louisiana (a number which is the third highest in the nation after Pennsylvania and Michigan).

Twenty states have already decided that life-without-parole sentences for juveniles just don’t make sense and have eliminated them; another 14 have almost no one serving the sentence. As Louisiana and other states contend with the shifting legal landscape, people like Montgomery may finally have a chance to see the world without bars.


Thanks to Jake Sussman.

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Special prosecutor requested in Indianapolis police shooting

Special prosecutor requested in Indianapolis police shooting


The family of an Aaron Bailey, an unarmed black man killed by police in Indianapolis, are asking for a special prosecutor to investigate the case.

Family members argue that Marion County Prosecutor Terry Curry has a conflict of interest and cannot fairly assess the culpability of Indianapolis Metropolitan Police Officers Michal P. Dinnsen and Carlton J. Howard.

“We felt that there was a close relationship between the prosecutor and IMPD, so we wanted someone who hasn’t worked as closely with IMPD to kind of take a look and give a fair analysis of the case,” said Bailey’s sister, Kimberly Brown, in an interview with Wishtv.com.

The officers pulled Bailey over for a traffic stop on June 29 and then engaged in a high speed chase with Bailey until his car crashed into a tree.

Police then got out of their vehicle and shot and killed Bailey.

The shooting of Bailey has frustrated the minority community in Indiana’s largest city, and Police Chief Bryan Roach has responded to Bailey’s death by promising transparency and change. The investigation is still ongoing and Curry’s office declined to comment on the family’s request that his office be recused.

Roach has asked the FBI to conduct an independent review of the shooting. Indianapolis Mayor Joe Hogsett has also announced police will go through implicit bias training and reevaluate their use of force policies.

Roach has said he does not know what happened that led the two police officers to shoot, and he is also not aware if reports that Bailey reached down into his car at some point before being shot are correct.

The information on the investigation will likely go directly to Curry’s office, who will decide whether or not to file charges—unless he decides to recuse himself. The family is also considering filing a civil lawsuit against the police and the city.

According to the Indianapolis Star, “Many members of the city’s black community say they are cautiously hopeful, but they also remain skeptical. They have seen this before in the aftermath of police shootings of black men — the concern and condolences, promises of transparency, talk of systemic change.”

Police shootings, particularly of unarmed black men, have repeatedly made national news in the last few years. Most of the time prosecutors have declined to prosecute police, such as in the case of Darren Wilson, who was not indicted for the killing of Michael Brown in Ferguson, Missouri.

On the rare occasions that prosecutors do charge, convictions often don’t happen. There have been acquittals, like in the killing of Philando Castile in Minneapolisor juries deadlock like the case of Samuel Dubose, who was shot by Ray Tensing in Cincinnati.

In both instances the officers involved ended up going free.

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