People can go to jail for one of three reasons: Because they had an outstanding warrant, because they were previously arrested, or because they were sentenced to a jail term. Today’s post is about the first two.
I’ll be talking about the process in Seattle Municipal Court (SMC), because that’s probably the court I’ve appeared in the most. So let’s start with arrest, because that’s the most common scenario. In SMC, court rules require that someone arrested be arraigned within 48 hours of the beginning of detention. What is arraignment?
There is almost never a reason to plead on your first appearance. The offer from the prosecution usually doesn’t go away, so if you want to plead later on you’re more than welcome to. And as I’ve said, a conviction is actually a big deal. A lot of jobs are cut off if you have a conviction, especially for something like Assault or Theft. And sometimes clients are on probation on other matters; a new conviction is always a violation of their probation. This can be a trap actually, sometimes the offer for the new conviction is really good, but at the probation review hearing, the prosecutor asks for months and months in custody as a sanction.
Common crimes that plead are Driving While License Suspended in the Third Degree, Trespassing, sometimes Theft. But the fact is it’s rare for these circumstances to exist. Crimes like Domestic Violence Assault, DUI, and for people who don’t have any criminal histories, I will never recommend they plead on the first appearance.
Arraignment is the process of being charged with a crime. Contrary to popular opinion, and often contrary to the words of the police themselves, in Washington the police do not have the power to charge you with a crime. They can arrest you on suspicion of committing a crime, but the actual charging process rests with the local prosecutor. It is that prosecutor that decides what (if anything) the defendant is charged with. And because due processm granted by the 14th Amendment, requires notice of what you’re charged with, the procedure is somewhat formal.
During arraignment, the defendant is told their charges and asked to enter a plea. The options are of course “Guilty” or “Not Guilty.” Whether to plead can be a complicated question based on the facts of the case. Almost always the answer is “Not Guilty,” but there are plenty of exceptions. In any event you need an attorney to go over the process.
Arraignment has been determined to be a “critical stage” in the criminal process. And that is an important designation, because the 6th Amendment is triggered on critical stages. Here is that Amendment in full, with the relevant text highlighted.
“ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
In essence, the defendant is eligible for an attorney when he’s being formally charged, before entering a plea. The attorney can be me, another private attorney, or a public defender. The attorney goes over precisely what the person’s charged with, the police reports and other available evidence, and in general discusses the consequences of each option. The lawyer’s job is advisory, so that the defendant has the final say in whether to plead guilty or not. But the lawyer can (and should) make a recommendation for a course of action. It’s a big decision, hence the need for advisor and advocate.
If this sounds complex, I’ll run through a typical scenario. Keep in mind this scenario is completely made up, but does have common elements.
Let’s say at 11:00 PM Mr. Smith was caught stealing a six-pack from the local grocery store. The loss prevention officer finds him, holds him, and calls the police. The police do a warrant check, then arrest him for the theft and transport him to the jail. Mr. Smith can call an attorney, or wait for a public defender.
The next morning, whoever the attorney is will get a packet on Mr. Smith. The packet will include the police report, his criminal history, his warrant history, and the sentencing recommendation if he pleads guilty. Based on this, we are supposed to advise our clients.
So here’s how it works. If I’m called I go to the jail (In Seattle it’s the jail-looking building on 5th and James). I’ll ask a guard to bring me Mr. Smith. I tell Mr. Smith what he’s charged with, and then we go over the police report. I ask him if the report is accurate, or are there glaring omissions. My goal with these questions is not to determine his guilt, but rather how robust his case is. IF the offer is positive and IF it looks like Mr. Smith won’t get out of jail otherwise AND IF the police report is overwhelmingly negative AND accurate, sometimes I’ll suggest a plea.
There really is no rush. Pleading Not Guilty retains all your rights, which include the right to a trial or the right to plead guilty later. No prosecutor in the world will turn down a guilty plea, the only thing that people get caught up on is the sentence recommendation.
The fact is, for stakes as high as criminal court, people should take their time. The defense attorney should have time to investigate and negotiate with the prosecutor. The prosecutor should have time to investigate as well; sometimes the police report doesn’t match reality. When both sides have all the facts, things usually end more justly. So a Not Guilty, which does not mean “I’m innocent” but rather “Prosecutor, prove your case!” is generally correct.
Of course the client makes the final decision. I’m never unhappy when a client wants to plead not guilty, even if they probably would lose at trial, for the reasons above. Sometimes I get frustrated when they want to plead guilty even when a not guilty plea is in their best interests. But, it’s their call to make. I go into detail (in private) why their choice is not in their best interest, but if they are hell-bent on pleading then and there, I will (in public) support it. My professional philosophy does include respect for my client’s autonomy. Sadly in criminal court, the respect is all too rare.
But let’s say they plead not guilty. What happens next? We got to the release motion, aka the bail hearing. In Seattle Municipal it works like this: the client comes into the courtroom (it’s attached to the jail). The prosecutor reads the charges to the defendant, gives him a copy of the criminal complaint, and asks for a plea. I formally acknowledge receipt of the charges and enter a plea (not guilty) on behalf of the client. The judge accepts the plea, then reads the police report to find probable cause (PC) to detain.
PC gets thrown around a lot, and it means different things in different contexts. For the purpose of the initial arraignment, it’s an extremely low standard of finding the charges have merit. Not that they are correct, but that it’s appropriate for the charges to exist at all. Have I mentioned this is a low standard? You can challenge PC, but mere improbability, or even absurdity, won’t change anything at this stage. If the police report says the defendant punched a unicorn, there exists PC to arrest for Animal Cruelty (Mythic Animal Cruelty?).
If I challenge PC, and it’s rare, it’s because even taking the police report as gospel truth the facts don’t amount to a crime. The occasional time I’ve won PC, it means someone with the prosecutors or the police screwed up in even getting things to that point. For example, I had a client who was charged with trespassing for being in a city park after receiving an admonishment by the police to stay out. We were able to determine the admonishment had expired a couple days before she was picked up by the police. Hence she had no restriction against being in the park, hence no PC for trespassing. Case dismissed.
But let’s say the judge finds PC and accepts the plea. Then what can be the biggest fight of the day: release. CrR 3.2 is the relevant court rule
Boiled down, the rule says the presumption is release of the defendant with no bail, no conditions, etc. But the court can look at two factors in setting bail: likelihood of failure to reappear, and dangerousness to the community. The court can examine anything to figure out those factors, but primarily they look at 1) the police report for this crime, 2) past criminal history, and 3) warrant history. My job is to argue for release on personal recognizance, i.e. the defendant’s promise to show up for future hearings. Bail can be a big deal for people with families or limited means, so the stakes can be release versus being locked up for weeks waiting for your case to be heard
Interestingly the warrant status has the same release structure. If you’re picked up on a warrant, the judge can set a bail or other conditions unless they’re convinced you won’t commit crimes and you will show up for future appearances. This is, obviously, more difficult with a warrant history. Judges really do not like people flouting the court process. Which naturally leads to my discussion on probation, but that’s a post for another time.