The Waiver of Right to counsel, 5th & 6th Amendments, and the Immigrant Defendant


It is a well established right under both the Federal and State constitutions, that anyone charged with a crime who cannot afford to hire his own counsel for his legal defense, will be provided counsel at no charge to him.  This mandate is also explicitly stated in the Texas Code of Criminal Procedure: “An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement . . .”.[i]

Depending on the County one is in, this will be done via either a Court Appointed attorney system or a Public Defender Officer (a model used by some larger cities).  However, in some smaller counties in Texas there still exists a practice being exercised by some County Court at Law Judges for Misdemeanor cases, working in collaboration with the local District and County Attorney offices, that has caused and continues to cause the potential to violate a person’s right under the 6th Amendment to “have the assistance of counsel for his defense” and the person’s 5th Amendment right to not be “deprived of life, liberty, or property without due process of law.”[ii]  We have seen many cases where gross abuses from these local practices have resulted in miscarriages of justice with little regard to the direct and collateral consequences that flow from an accused making an unknowing and uninformed waiver of his right to counsel.

Nowhere is this injustice more obvious and most frequently exploited than with 3 particularly vulnerable defendants:

  • The uneducated
  • The young
  • The non-English speaking immigrant

The most egregious abuse happens when all 3 of these characteristic reside in 1 super-ignorant individual: the non-English-speaking, uneducated, young foreigner accused of a crime.  Many criminal defendants are at a disadvantage from the beginning as statistics reveal that most criminal defendants are some of the most un-educated in society, most live at or below the poverty line, and many from single parent homes, where they lack substantial parental engagement and teaching due to the single parent working long hours or multiple jobs.  Even where there is parental engagement by one or both parents, if those parents themselves are uneducated (as is common in immigrant families from 3rd world countries) their children will not benefit from even basic common sense legal knowledge that would be present in native born American children with American parents. The 3rd-world-immigrant-parents commonly have less than a middle school education, have zero understanding of the U.S. legal process, and (due to not having grown up here) don’t even have the street level legal knowledge that an American may have gleaned from watching TV programs or movies with legal themes and issues presented in their story.

They have never heard the expression, “you have the right to remain silent”, or the phrase “read me my rights”, and many times they aren’t even sure their legal status (assuming they are present in the country illegally) affords them any protections and rights under the law.  Many of these humble and uneducated souls will merely do what they are told- “sign here”, “blow in this machine”- resigned to a state of ignorance and confusion due to their language barriers and educational barriers.

Instead of taking advantage of these individuals, our courts are charged with the duty and highest calling of protecting the rights of those who are the least able to understand, comprehend and assert these rights. To assure protection of a right as fundamental as the right to counsel, courts should indulge every reasonable presumption against waiver of counsel.[iii] In a criminal case, the record must show that the defendant was informed specifically of his right to the assistance of appointed or retained counsel and that he clearly rejected such assistance.[iv]

The best way of assuring defendants receive due process and don’t make an unknowing waiver of any rights is making sure competent counsel is appointed to educate, explain, and represent these people. The defendant must be informed specifically of his right to have counsel appointed at the state’s expense.

However, in many counties with smaller populations, the Courts can be seen glossing over the right to counsel with an efficiency that is scary, if not effective, in meeting its designed ends.   The process, as I have personally seen it played out in several central Texas counties, is that the Judge will have a court setting where there will be numerous defendants, both incarcerated and out on bond, and the court uses this setting to make a determination if the accused has hired legal counsel.  Now there are variations on how this gets played out, but the following process usually is manifested in the following way or form:

–          The Judge will ask who is present without an attorney

–          The Judge will briefly mention they are welcome to pay for an attorney with their own money, or they are welcome to speak with the prosecutors on their own to work out a deal

–          Some counties will read out loud a warning that the accused has a right to counsel and have the right to apply for court appointed counsel, some counties will hand out something for the defendants to read (many times it is not provided to read in Spanish and seldom if ever are defendants asked if they are literate, relying on the accused to self identify his shortcoming)

–          Some counties will have everyone apply for court appointed counsel and deny on case by case basis (never explaining the right to counsel is an absolute right that does not have to be waived), some counties will tell the defendant’s that they can apply if they want, and for the most part all of them leave the defendants confused as to whether they have a right to court appointed counsel or not, and many are led to believe, if not flat out encouraged, that talking to the prosecutor by themselves is the best and fastest way to resolve their case (at no cost to the defendant !)

–          Prosecutors will talk to defendants and explain the offer they are making, sometimes justifying why they are making the offer (without getting into the evidence).  It is very common to hear a prosecutor explain how probation works, what is deferred adjudication.  It is also common to hear prosecutors answer questions from defendants, very quickly crossing an already blurred line of establishing an attorney client relationship, to then giving legal advice to the very person they are prosecuting.

The whole process is designed to appeal to the pocketbook and schedule of a low resourced individual, and entice him to talk with a prosecutor in order to resolve their case without having to pay an attorney and possibly resolve everything in one setting without the need to miss another day of work or school to return to court.  It appears double insidious when it is done specifically with the intent that the County save money on hiring an attorney to defend the accused.  Counties who are eager to save costs (The County has to pay for indigent defense out of their own budget) are more than happy to accept plea agreement deals from defendants who have opted for self representation, without regard to the lifelong consequences, and potential disastrous results that can follow.  At best the client is not being explained all the consequences of his plea by the court before entering it.  At worst the client is being told things about his plea deal that are partially correct, and leaving him with a false impression and misrepresentation about the totality of the consequences he will incur.  Although the Supreme Court in Padilla v. Kentucky required counsel to correctly explain any probable immigration consequences, it remained silent as to the requirement and responsibility to do so when the client has waived his right to counsel.[v]  Is the prosecutor required to explain it to him (most prosecutors don’t have a clue to immigration law) ?  Is the Judge required to explain it to him (most judges rely on the phrase “this may have immigration consequences” which the Padilla court specifically rejected as inadequate when the Immigration Consequence is inevitable) ?

The defendant must be informed specifically of his right to have counsel appointed at the state’s expense.[vi] If an accused is not intelligently and understandingly waiving the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction.[vii]

For the immigrant defendant, very frequently he unwittingly, and (most assuredly) unknowingly signs a plea deal that will result in his deportation and (in some cases) a lifetime ban from ever again entering the United States.  For the young student, he can sign a plea deal that will bar him from every holding certain professional licenses, or have other consequences that can mean thousands of dollars in surcharges and license suspensions.  For all, they will be convictions or marks on their record that will never be eligible to expunge (under current laws).

You can’t expect 17-18 year old young people (treated as adults under the law), many who show up to court without a parent, to know that by signing their plea agreement, they will never be able to expunge this criminal matter and it will be on there for life.  No lay person understands the law of expunctions – heck most lawyers who don’t practice criminal defense don’t know the qualifications.   Moreover, you can’t expect an uneducated, non-English speaking immigrant, to understand or know on his own that his plea agreement will result in horrendous collateral consequences and bar him from ever legalizing his status.

Even worse, I have overheard many conversations where prosecutors inaccurately state the law or fail to completely explain the law to a defendant when explaining what he is offering in his plea deal.  A perfect and very common example of this is when a prosecutor explains that by signing for a Deferred Adjudication probation deal, that if the client successfully completes the term of probation, that it will not be a conviction and that the case will be dismissed at the end.   Failing completely to further explain the difference between a Deferred Adjudication dismissal and a straight dismissal, leaving the defendant with a misrepresentation of the law.

Our Constitutional rights and our system of Criminal Justice, are too important to risk tainting such sacred proceedings with unfairness, least of which for the sake of temporal and monetary expediency.   These practices should probably be done away with completely to avoid further risking any constitutional violations, but at the very least, courts need to take special precautions and extra efforts to appoint the accused counsel and urge them to hire their own attorney.  Especially in the case of the young, the uneducated, and those no fluent in English.  A simple inquiry by the Court of the accused before taking his plea to identify these characteristics and then requiring these younger and more ignorant defendants to talk with an attorney and their parents before accepting their plea would best protect the principles of justice and fairness our judicial system was founded on.

[i] TEX. CODE CRIM. PROC. art. 1.051.

[ii] U.S. Const. am. 5; U.S. Const. am. 6

[iii] Trevino v. State, 555 S.W.2d 750, 751 (Tex. Crim. App. 1977) (panel op.) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

[iv] Carnley v. Cochran, 369 U.S. 513, 516 (1962).

[v] Padilla v. Kentucky, 130 S. Ct. 1473 (2010)

[vi] Piankhy v. Cuyler, 703 F.2d 728, 731 (3d Cir.1983).

[vii] Uveges v. Pennsylvania, 335 U.S. 437 (1948)

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