Reports criticize Utah courts over your right to a lawyer

Posted at 10:06 AM, Oct 26, 2015
and last updated 2015-10-26 20:28:11-04

SALT LAKE CITY -- A pair of reports leveled some harsh criticism over how the Utah court system deals with your constitutional right to an attorney.

The reports, released Monday at a meeting of the Utah Judicial Council, showed that in some instances, people were entering pleas in court without ever having consulted a lawyer. One report called it a "misapplication of Sixth Amendment case law."

The Sixth Amendment to the U.S. Constitution guarantees your right to an attorney. In Utah, roughly 62-percent of cases are handled in the courts without a lawyer.

As part of an investigation, the advocacy group Sixth Amendment Center observed practices in justice and district courts. The Utah Judicial Council also commissioned its own study.

In Utah justice courts, one report found that prosecutors were "directly entering into plea agreements with uncounselled defendants, or, in the absence of prosecutors at arraignment, judges advising defendants and negotiating pleas." A defendant can waive their right to an attorney, but the report by the Sixth Amendment Center found that justice court judges were observed "regularly allowing defendants to waive counsel without individualized inquiries into their decision to go without counsel."

Read the report by the Sixth Amendment Center here:

In every justice court observed, defendants who waived their right to an attorney were given suspended sentences and probation. That could be a problem later on, the report said, if the defendant violated probation and suddenly found themselves facing jail time without ever having consulted a lawyer.

In many justice courts, prosecutors were also absent from the courtroom. The report said that left the judge in the role of negotiating a plea deal, advising defendants and then judging the same case.

The Utah Judicial Council discusses a pair of reports that criticized how the state court system handles constitutional right to a lawyer during its meeting Monday, Oct. 27, 2015. (Photo by Ben Winslow)

The Utah Judicial Council discusses a pair of reports that criticized how the state court system handles constitutional right to a lawyer during its meeting Monday, Oct. 27, 2015. (Photo by Ben Winslow)

In district court, which handles class A misdemeanors and felonies, almost every case had an attorney present. However, the report prepared by a committee of the Utah Judicial Council, found problems with the system involving public defenders. Those are lawyers appointed for those too poor to afford an attorney.

The report said there is no state oversight over county and municipal indigent defense systems, declaring "local governments are left to their own sometimes-limited resources in seeking to discharge their indigent defense responsibilities." Some counties or cities have a "flat-fee contract," which the report said "can create a structural tension by pitting an attorney's financial interests against the best interest of a client" when a lawyer is low-balled for the work. The Utah Judicial Council's report recommended ending that practice.

The report also detailed a high-volume caseload for publicly appointed defense attorneys, something the council said it was already working to address.

Read the report by the Utah Judicial Council's task force here:

"These are systemic issues," Utah Court of Appeals Judge Stephen Roth said during the presentation of the report on Monday.

The Utah Judicial Council voted to accept some recommendations made by the reports, including the creation of a statewide commission to focus on indigent defense needs and more outreach to justice court judges to remind defendants of rights they waive if they forgo counsel.

"I think there is a concept of the Sixth Amendment in the justice courts," Judge Roth told FOX 13. "The justice court judges, I think are very committed to complying with the law. But the case loads are so high."

Lawmakers are expected to address some of the issues in the upcoming legislative session. One potential solution is to make speeding and other traffic offenses infractions. Rick Schwermer, the assistant administrator for the Utah State Office of the Courts, said state law is unique that those can be jailable offenses.

"The solution for that -- several hundred thousand of those -- is to move those from (class C misdemeanors) to infractions, which we’ve proposed to do," he told reporters on Monday.

The reports mirror long-running complaints made by low-income advocacy and civil liberties groups. The ACLU of Utah surveyed Utah's 29 counties and found all of them on some level were failing people on their constitutional right to a lawyer.

The ACLU has threatened to sue the state of Utah if changes are not made.