CrRLJ 4.1 - Arraignment

• Proposed Changes to CrRLJ 4.1 - Arraignment (in Word Format)
• Comments Received for CrRLJ 4.1 - Arraignment

GR 9 COVER SHEET
Suggested Amendment to
CRIMINAL RULES FOR COURTS OF LIMITED JURISDICTION (CrRLJ)
CrRLJ 4.1 ARRAIGNMENT

Submitted by the Washington State Bar Association

Purpose:

The suggested amendments to CrRLJ 4.1 are intended to change the culture of courts of limited jurisdiction that hold arraignment calendars without providing counsel as required by the existing court rules and state and federal constitutions.

Background and Rationale

“Courts of limited jurisdiction serve as the window to the judicial branch for many people who do not normally have contact with the judicial system.” In re Discipline of Michels, 150 Wn.2d 159, 170, 75 P.3d 950 (2003). The Michels court added:

The rights of the poor and indigent are the rights that often need the most protection. Each county or city operating a criminal court holds the responsibility of adopting certain standards for the delivery of public defense services, with the most basic right being that counsel shall be provided.

Id. at 174. More than 30 years ago, in Argersinger v Hamlin, 407 U.S. 25 (1972), the United States Supreme court extended the Sixth and Fourteenth Amendment right to counsel to defendants charged with misdemeanors that carry a potential jail sentence. In Argersinger, Justice Douglas warned of the danger that unrepresented defendants might fall victim to “assembly-line justice.” Unfortunately, many city and county courts in Washington do not provide lawyers at arraignment or probation review hearings. As a result, thousands of accused persons face misdemeanor prosecutions and revocation of probation every year in Washington without meaningful access to counsel.

In The Right to Counsel: Every Accused Person’s Right,¹ Seattle public defender Robert Boruchowitz reported on observations he had made in courts of limited jurisdiction during his Soros Fellowship. He found that some courts have stated, either on websites or in court, that no lawyer will be provided at arraignment. In these courts, accused persons who wished to resolve their cases quickly and who had no one to advise them felt pressured to go forward without counsel. Mr. Boruchowitz noted that some in-custody defendants in handcuffs were approached by prosecutors seeking to negotiate guilty plea agreements without counsel. The WSBA Blue Ribbon Panel on Criminal Defense² also found that these practices were widespread in many district and municipal courts, and that defendants in custody who did ask for a lawyer would often then have to wait in jail for another hearing a day later, sometimes several days later.

The practice of arraigning persons without the presence of counsel in courts of limited jurisdiction circumvents a crucial right in a criminal case: the right to counsel. As noted above, prosecutors negotiate directly with unrepresented, uncounseled defendants, and judges take guilty pleas at the first appearance of an often unsophisticated, confused, and hurried defendant before he or she can review the matter with a lawyer or even determine whether the assistance of counsel would be advisable.

Moreover, in many courts, neither a defense lawyer nor prosecutor is present at the arraignment hearing. Owing to a lack of alternatives, the judge is then thrust into the prosecutorial role of informing the defendant of the nature of the charge and the maximum penalty under the law. In these circumstances, moreover, some judges take uncounseled guilty pleas and fill out the guilty plea form for the defendant. Even if a prosecutor is present, that prosecutor may meet with the unrepresented defendant and persuade him or her to accept a plea offer at arraignment without the defendant being advised or aware of any collateral consequences that may occur as a result of the plea.

The Current Rule and Its Shortcomings

Existing CrRLJ 4.1 does not expressly provide for the presence of counsel at the arraignment hearing. Instead, the rule provides that the defendant may not be forced to enter a plea to the complaint until he or she has had a reasonable time to examine it and to consult with a lawyer if requested. CrRLJ 4.1(a)(2). The rule also requires the judge to “advise” the defendant on the record of “the right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one.” CrRLJ 4.1(a)(3). Many judges and prosecutors interpret CrRLJ 4.1 to allow arraignment without counsel if the judge advises a defendant that he or she has a right to a lawyer at arraignment. In these situations, the judge will proceed with the arraignment after advisement unless the defendant affirmatively asks for a lawyer to be present. Often this advice of a right to a lawyer is given en masse at the start of a criminal calendar without any individual soliloquy with the defendant as to whether he or she wants a lawyer or can afford one.

The standards for a court’s acceptance of a valid guilty plea require that, prior to acceptance of the plea, the judge must determine, and the circumstances reflected on the record must show, that the guilty plea was made freely, voluntarily, and intelligently with a full knowledge and understanding of the nature of the charge and the consequences of the plea. CrRLJ 4.2(d). Additionally, a defendant has a right to be represented by a lawyer when entering a plea of guilty. See CrRLJ 4.2(g) (paragraph 4(a) of Statement of Defendant on Plea of Guilty). Although not clearly stated in CrRLJ 4.2, a guilty plea proffered without counsel cannot be taken without a valid waiver of the right to counsel. For such a waiver to be accepted, the judge must ascertain that the waiver was made voluntarily, competently, and with knowledge of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004); In re Grajeda, 20 Wn. App. 249, 579 P.2d 406 (1978). Although both court rules and case law in Washington recognize a right to counsel at the entry of a guilty plea, a considerable number of courts of limited jurisdiction accept uncounseled guilty pleas at arraignment. Because there are more than a quarter of a million misdemeanor filings each year in Washington, this is a considerable problem.

The WSBA Suggested Amendments to CrRLJ 4.1

The attached amendments to CrRLJ 4.1 are designed to ensure that Washington’s courts of limited jurisdiction maintain the appearance of fairness and afford all defendants the right to counsel by requiring that a lawyer be present to assist defendants at arraignment, and by prohibiting the court from proceeding with arraignment in the absence of counsel or a valid waiver. In no case would the amended rule prevent a defendant who has validly waived counsel from pleading guilty at arraignment. Counterpart amendments to CrR 4.1 are intended to conform the language of the superior court rule where appropriate.

The Already-Pending “DMCJA” Proposed Amendments to CrRLJ 4.1

In pursuit of essentially the same goals, the District and Municipal Court Judges’ Association (DMCJA) suggested, and in April 2007 the Supreme Court published for comment, proposed amendments to CrRLJ 4.1. ³ Although the two versions were originally disparate in a number of respects, discussions initiated by the Chair of the WSBA Court Rules and Procedures Committee resulted in a reduction of the differences to only a few, detailed below. The versions are now otherwise substantially similar. For example, both the WSBA version and the DMCJA version utilize the same organizational structure (which mirrors the format of existing CrR 4.1). And both versions incorporate an “attorney of the day” provision, originally devised by the DMCJA. The WSBA version, however, clarifies ambiguities in the DMCJA version that could be construed to permit courts of limited jurisdiction to continue to circumvent the right to counsel at arraignment. The WSBA version makes clear the obligation of the court and of local jurisdictions to ensure the presence of counsel at arraignment to advise defendants before entry of a plea.

Significant Changes to the Rule

Apart from a general reorganization to conform the structure of the rule to that of the corresponding superior court rule, CrR 4.1, the following components represent recommended changes of significance and/or distinctions from the DMCJA-proposed version.

• CrRLJ 4.1(c). Requirement of Counsel. WSBA’s suggested amendment ensures that counsel is assigned at arraignment by specifying that, if at arraignment the defendant is not represented and is unable to obtain counsel, “the court shall provide for a lawyer pursuant to CrRLJ 3.1.” By contrast, the DMCJA-proposed version, using language found in CrR 3.1, provides that counsel shall be assigned “unless otherwise provided.” Second, unlike the DMCJA version, the WSBA-suggested amendment expressly states: “A defendant shall not be arraigned unless counsel is present to assist the defendant at the arraignment.” Both versions provide the option of satisfying the right to counsel at arraignment through “limited appearance counsel,” which is defined as a lawyer who is present to assist unrepresented defendants at an arraignment calendar.

• CrRLJ 4.1(d)(1). Waiver of Counsel. For situations involving waiver of the right to counsel, WSBA’s suggested amendment adds an express requirement for entry of a finding that counsel has been waived at arraignment, which must include “a finding that the defendant had the opportunity to consult with counsel who was present at arraignment.” Additionally, this paragraph specifies that without a valid waiver, the court cannot proceed with the arraignment until counsel is provided. By contrast, the DMCJA version borrows language from CrR 4.1(d), which only states, “If the court finds the waiver valid, an appropriate finding shall be entered in the record.”

• CrRLJ 4.1(d)(2). Waiver of Interpreter. New paragraph (d)(2) would prohibit a court from accepting a waiver of interpreter at arraignment, except in compliance with RCW 2.43.060 (“Waiver of right to interpreter”).⁴ Although the statute is mandatory, this provision in the rule will serve to remind the court and counsel about the necessity of statutory compliance.

• CrRLJ 4.1(f). Reading of Charges and Presence of Prosecutor. WSBA’s suggested amendment requires that a prosecutor be present at any in-custody arraignment. By contrast, like the existing superior court rule, the DMCJA version is silent on the issue of whether a prosecutor must read the charges or be present at an arraignment.

WSBA Recommends Concurrent Amendments to CrR 4.1 and CrRLJ & CrR 4.2

Complementary amendments to CrR 4.1 conform the language of that rule to the amendments to CrRLJ 4.1, where appropriate.

Companion amendments to CrRLJ4.2(d) and CrR 4.2(d), which govern pleas, reinforce the significance of the right to counsel when a defendant enters a plea by specifying that a court “shall not accept a plea of guilty from an unrepresented defendant unless a valid waiver of counsel is entered on the record.”

² See Report of the WSBA Blue Ribbon Panel on Criminal Defense (May 2004), available at http://www.wsba.org/lawyers/groups/blueribbonreport.pdf

³ Following publication of the proposed amendments, WSBA requested, and the Supreme Court authorized, an extension of the comment period to August 17, 2007.

⁴ The statute provides as follows:

(1) The right to a qualified interpreter may not be waived except when:

      (a) A non-English-speaking person requests a waiver; and

      (b) The appointing authority determines on the record that the waiver has been made knowingly, voluntarily, and intelligently.

(2) Waiver of a qualified interpreter may be set aside and an interpreter appointed, in the discretion of the appointing authority, at any time during the proceedings.