Public defenders challenge law that delays access to a lawyer

P. SOLOMON BANDA Updated: January 30, 2011 at 12:00 am • Published: January 30, 2011

DENVER • Facing a prosecutor without an attorney, truck driver Ryan Weaver says he pleaded guilty to a crime he didn't commit because he thought he didn't have much of a choice.

"Basically, the way they put it, if you didn't take it (a plea deal), you could end up staying in jail," said Weaver, who spent one night in jail for a misdemeanor conviction — later thrown out — stemming from a domestic dispute.

The law in Colorado states that a misdemeanor defendant who can't afford an attorney may apply for a public defender only after meeting with a prosecutor. Because of the law, legal observers say the wait for a defender in Colorado's crowded judicial system can take days, if not weeks, costing the accused jobs, their homes or a criminal record if they take a plea to get out of jail.

Other jurisdictions across the country have similar methods of appointing public defense attorneys, but Colorado is the only state that has it written into law.

The 1992 law was a cost-cutting measure to deal with a spike in drug and domestic violence cases. But the Colorado Criminal Defense Bar and Colorado Criminal Justice Reform are challenging it in federal court, arguing it frequently denies legal counsel for the poor.

"What we really care about is there are indigent folks who are basically extorted," said Dan Schoen, the defense bar's executive director. "They're in lockup. They have to get their lives back. They can't wait two weeks. You have a DA who says, 'Here's the plea, you have five minutes to accept it.' It really places a lot of pressure on people."

Defense attorneys say many who accept pleas without counsel aren't aware of consequences a misdemeanor conviction can sometimes bring: Deportation for non-citizens, the inability to own a gun, obtain a student loan or get into the military.

The Colorado Attorney General's Office, which is defending the law, declined to comment on the December lawsuit filed in U.S. District Court in Denver.

But in a 2009 opinion, state attorneys said the law allowed prosecutors to "dispose of small, easy cases quickly."

Former Deputy Attorney General Thomas Raynes said nothing compels defendants to speak with prosecutors and that prosecutors are required to tell defendants they have a right to an attorney.

Scrutiny of Colorado's law followed a 2008 U.S. Supreme Court ruling that held in a Texas case that defendants have a right to an attorney at their first court hearing. A Texas man wrongly accused of being a felon in possession of a firearm spent three weeks in jail before a court appointed attorney was able to get the case dismissed. The man's criminal record erroneously contained a felony conviction.

Raynes insisted the Supreme Court ruling doesn't dictate that a public defender be in court the moment somebody asks for one.

"Our first priority is to protect the rights of the defendant, but it's got to be a workable system," said Raynes, who is now executive director of the Colorado District Attorneys' Council.

Doug Wilson, Colorado's public defender, estimated it would cost up to $6 million to add 55 attorneys and support staff to handle an estimated 15,000 to 17,000 additional cases to comply with the Supreme Court decision. Lawmakers rejected his recommendations in 2009, citing the cost.

Wilson's 393 attorneys handled 95,000 felony and misdemeanor cases last year.

Ryan Weaver, the Colorado trucker, said his plea offer was made as he sat in Weld County court next to other defendants in 2008.

"I didn't want to go back to jail," he said.

But after his plea, he hired Greeley attorney Maria Liu, who argued that a police officer overstated the facts of the domestic dispute. A judge agreed to let Weaver withdraw the plea and ultimately dismissed the charge, clearing his record.

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