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DIY legal strategies for defendants to give their lawyers a running start

If you’ve been arrested at a protest action you’ve got more legal options than paying the fine or taking a plea deal. Whether or not your act was constitutionally protected, or should be, or whether it was civil disobedience and was meant not to be, there are a couple good reasons to fight your charges in court. First, to draw further attention to your issue, and second, to give your prosecutors more incentive to offer a better plea deal. They might even drop your charges altogether.

Let’s assume you have the time to attend multiple court dates and that your low income means you qualify for a public defender.

Don’t have the time?
If you don’t have the time, make it. Every court appearance is a chance for a press release. Example: City Prosecutes Activists Instead of Indicting Killer Cops. Not only are you forfeiting the opportunity for more publicity, you are resigning yourself to a stiffer plea offer. Probation, or deferred judgement, or deferred prosecution for a probationary period, will take a larger chunk of your time from activism than a few court dates.

If you are eventually planing to hire a private lawyer, the same initial strategy applies. Your inconvenience is nothing compared to the wrench you’re throwing into the city’s injustice machine, by merely fighting your case.

Let’s assume also that you have bonded out of jail. Your first court appearance will be a BOND RETURN DATE. If you did not bond out and remain in custody, your first court appearance will usually be the morning after your booking and will be called an ARRAIGNMENT. Both are supervised by a magistrate before whom you will be expected to plead guilty or not guilty.

You are going to do neither.

That said, if you are still in custody, your first objective would be to hasten your release, hopefully on a PR bond. In such case, the following steps need not be uncompromising.

City Attorneys
If your event is a bond return date, you will first be called out of the courtroom by a city attorney to discuss a plea deal. Here’s where most people think they can candidly argue their case in hope that the prosecutors will decide to drop the charges. Those defendants are only giving the city more cards to deal against them. Your first move will be to DECLINE TO SPEAK TO CITY ATTORNEYS. You can ask what deal they are offering, but you say nothing about your case and admit to nothing. You are better off not even sitting down. Tell them from the hall that you have nothing to discuss, have them please bring your case before the magistrate.

The Magistrate
When the magistrate calls you up, tell him or her that you DO NOT CONSENT TO A MAGISTRATE adjudicating your case, you want the judge to which you are entitled. The magistrate will have to reschedule your court date before a judge, in the division to which your case was assigned. This might be one or two weeks later.

Bond Return Date, Round Two
Your second date, this time titled an “Arraignment” will be another chance for the city attorneys to pretend they have a right to interview you. Again you brush them off. When you’re finally called before the judge, he or she will ask you what you plead. Say that you CANNOT PLEAD BEFORE CONSULTING AN ATTORNEY. Asked if you have an attorney, say no, you require a public defender.

The judge will tell you a public defender will only be assigned after you’ve entered a not-guilty plea. Stand your ground, ask how are you supposed to make a legal decision without the advice of the public defender? The judge will decide to enter a not-guilty plea on your behalf, to which you will OBJECT.

A plea made over your objection will be a potential element of a future appeal. Likewise was the attempt by city attorneys to pretend they had authority to discuss your case without your having an attorney present. These will be two factors that will give you leverage in negotiating a better plea offer.

The judge will ask if you want a jury trial, to which you will answer YES. You’ll be assigned a pretrial conference date, or reset date, and a trial date. Your next task will be to apply for a public defender.

Representation
If you make too much money to qualify for a public defender, you might want to hire a lawyer, or find one who is sympathetic to your cause who can represent you Pro Bono. If you are smart enough on your feet, you can represent yourself PRO SE.

One possible advantage to proceeding Pro Se is that the city might eventually drop the charges, calculating that if you couldn’t find an attorney to defend your criminal case, you are unlikely to find one to bring a civil suit against the city for false arrest. They risk little to drop your case instead of spending an awkward day in court trouncing a DIY defendant in front of a sympathetic jury of his peers.

If your application for a public defender is accepted, they’ll also waive the $25 jury fee. If you can’t apply for the public defender within 30 days of your forced not-guilty plea, you should file the jury trial request yourself and pay for it.

No not under any circumstance elect a trial by judge. Denfense lawyers call that a “slow motion guilty plea.” You’ll soon learn that judges work for the same side as the prosecutors. So do the public defenders, but they can serve your purpose for the time being.

In a future article I’ll discuss what to do with public defenders.

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