Waiving Our Rights: Washington County, UT
KEARNEY, NE – 6/30/18
“Welcome to court this morning. Are you under the influence of anything today? What is the highest grade you completed in school?” Over the span of an hour on a Monday morning, Judge Ronald Read began almost 15 hearings this way in the Washington County Justice Court in St. George, Utah.
It’s a commonly written about topic that almost no cases in our criminal justice system nowadays get to trial – upwards of 94 percent of cases end in a guilty plea in state courts, by one estimate. But there’s something more striking to see this, in person, take shape so quickly in some many cases. In over half the cases I observed in that hour, the defendant came forward, waived their right to an attorney, and pleaded guilty. They had each read and signed a form titled “Rights, Instructions, and Waiver Form,” which had laid out their rights, but there was no further colloquy (legal nerd term for discussion or conversation) between the judge and the defendant about the sacrosanct rights they were giving up: the right to a jury trial, to call witnesses, and to confront the prosecution’s witnesses, amongst others.
Now, the stakes are not exceptionally high in this court – its jurisdiction is limited to class B and C misdemeanors, as well as infractions; more serious cases land in the Fifth District Court (where I also spent time). All of these pleas were to fairly low-level offenses: marijuana possession, various traffic offenses and violations, and some minor assault charges. However, in many of the cases, they were still a criminal offense. The resulting record could negatively impact a defendant’s future employment or education and yet it seemed that each person viewed it as almost a transactional occurrence – easier to just get it done with, pay a fine, and move on.
This court was by no means inconsiderate of defendants' rights or at all noncompliant with its legal obligations: the judge was certain to advise defendants of their right to counsel and have them waive it before proceeding, and the form each defendant signed clearly laid out the applicable rights that a guilty plea waived. The judge made sure each defendant understood what they were doing and he was deliberate and measured in his process. Given how carefully it seems that Americans read, let alone fully comprehend, forms written in legalese, though (after all, the form is in essence a “Terms and Conditions” for court), I remain skeptical.
There lies the disconnect – according to the law, everything was done perfectly. Defendants were appraised of all their rights and waived them voluntarily. They were not facing years in prison or tens of thousands of dollars in fines – the charges carried a maximum penalty of six months in jail and a $1950 fine. But given how important the rights of criminal defendants are – and the way in which Americans love to extoll just how hard-won our freedoms are – it was disconcerting to see them used so little.
Interestingly, besides the right to counsel, the one right mentioned to a defendant verbally by the judge was the right to bear arms; he noted to one defendant facing a domestic violence charge that a conviction could cause her to forfeit the right to own and carry a firearm.
Over in district court, the judges were rightfully more thorough in verbally ensuring a defendant understood a guilty plea’s implications and assessing that it was voluntarily made. One judge I observed, Judge G. Michael Westfall, was particularly thorough; before he accepted a guilty plea, his colloquy with the defendant included asking whether she was under the influence of any intoxicant or prescription drug, whether she had any impairing conditions, and if she had talked to her attorney about her rights and understood those rights. He then asked her attorney if the attorney perceived that she understood and was voluntarily waiving her rights. He also reiterated the rights she’d be giving up by forgoing a trial (she’d signed a similar waiver of rights form), asked if she understood the English language enough to read that form, and inquired whether it was her signature and initials on it. He asked if she understood that the plea agreement was not binding on the court for her sentencing and asked if she’d received any threats, force, or promises influencing her plea. Only then did he accept it as “freely, knowingly, intelligently, and voluntarily given.”
There was one disconcerting plea I observed in district court, though. As a defendant pleaded guilty to a charge of criminal mischief for breaking some property in his family’s home (in addition to an assault charge) before Judge Jeffrey Wilcox, he blurted out that he had not actually broken anything except his own property. When the judge asked if he was saying that he was innocent and ought to go to trial, the defendant demurred, saying, “I don’t want to put my mom through all that.” The judge then asked him, “Are you doing this [pleading guilty] because you’re guilty and this is the way you want to handle it?” The defendant initially responded, “Do I have a choice?” After some further questions to ensure he really understood what he was doing, the judge accepted the guilty plea. So many commentators have already written about the hidden coercion to plead guilty for a plea agreement in our legal system today, but it was uniquely discomfiting to watch this play out in microscale.