Guest Commentary

‘Plea factories’ gum up public defender system

What ought to take 24 hours often ends up taking weeks. Indigent defendants sit in jail, making it difficult for their public defenders to interact with them and causing jail over-crowding.
What ought to take 24 hours often ends up taking weeks. Indigent defendants sit in jail, making it difficult for their public defenders to interact with them and causing jail over-crowding.

The origin of the crushing caseload in the Kansas City public defender office, described in The Star’s Oct. 23 editorial, does not lie with the public defender, nor does its solution. It is a problem created by and solvable solely by the courts and prosecutors.

First, for over 20 years, Jackson County defendants charged with a crime have been deprived of the right to a preliminary hearing by a prosecutor’s office that (technically legally) refers every charge to a permanently-impaneled grand jury for a rubber-stamp indictment, unless a defendant agrees to waive his preliminary hearing. The practical effect is that no judge (and seldom a prosecutor) ever is required to review the actual evidence.

Bad cases drag on for months, often with a defendant held in jail. Had the state been required to present evidence at a preliminary hearing, someone might have noticed that an innocent man was … well, innocent — and in two weeks, not 13 months.

Under this abusive system, neither the prosecutor seeking an indictment (nor even the police officer who testifies to the grand jury) need ever even read through the file. I personally represented a young man who had been erroneously charged with murder, despite a confession from another person that was buried deep in the pile of reports. The detective who testified to obtain the indictment had nothing to do with the case other than carrying the file across 12th Street. That is how easy it is for a young man’s life to be nearly destroyed.

As private counsel, I had the luxury of time to review 300 pages of police reports to see what had happened, convince the assistant prosecutor to look in the right place and dismiss the charge. The overworked public defender does not have that luxury.

Incarcerated defendants — desperate to save jobs, among other issues — often plead guilty regardless of the merits of the case against them and regardless of guilt. Public defenders who had no real knowledge of cases are forced to participate.

Instead of preliminary hearing dockets, we have those “plea factories,” where indigent defendants were forced to plead guilty (ironically, usually to probation) just to end their incarceration. This is ironic because the same defendants on which the prosecutor opposes a signature bond are often offered probation in exchange for a guilty plea. Using the jail to “encourage” pleas was one of the main reasons that the federal court imposed a population cap back in the 1990s.

Of course, it would help if all judges followed the law on bail (Sec. 544.455) which requires release on personal recognizance unless a judge has reason to believe that a defendant will not appear in court, at which point some other limits can be required. The purpose of the law was to make granting a recognizance (signature) bond an automatic, default position.

Judges, fearing criticism from prosecutors and press, routinely ignore that law and set cash requirements that the indigent cannot meet. Moreover, new requirements that any change in bail must first involve notifying an alleged victim — with “victim” broadly defined — prevent quick correction of an excessive bond once it is set.

What ought to take 24 hours often ends up taking weeks. Indigent defendants sit in jail, making it difficult for their public defenders to interact with them and causing jail overcrowding.

Representing a defendant who is incarcerated before trial is extremely difficult. He cannot come to your office. His attorney must go to the jail during the limited time that visits are allowed. Forget a question and another trip is needed. It is at least twice as hard and time consuming to effectively represent a client who cannot make bail.

Defendants may not be entitled to a “dream team” — but neither should they be caught in a nightmare of pressure to plead just to move the trays of “cafeteria” justice.

Philip F. Cardarella is a criminal defense attorney in Kansas City.

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