If You Can’t Afford An Attorney…

by Bruce McEwen, October 27, 2010

Having the court appoint you a lawyer is a little like having your wife pick out your girl friend.

Don’t expect too much in either case.

You don't have a legal right to a girl friend, but you've got a constitutional right to a lawyer even if you can’t afford one. The judge will give you one, and he won't see anything wrong in giving you one who hasn’t won a case in 20 years. Anyway, he knows you're guilty, so shut up and live with it.

Enter Linda Thompson, Esq., Mendocino County’s Public Defender, appointed to defend indigents by the Mendocino County Board of Supervisors.

Ms. Thompson’s probably not the worst Public Defender in the country. I recall a judge being quoted in the Salt Lake Tribune as saying a number of defendants would have been better off with no representation at all than the Wasatch County Public Defender’s office. As newspapers go, we don’t think of the Salt Lake Tribune as being all that critical of traditional institutions, so you can be sure there were some atrocious Public Defenders in the Angel Moroni's home state.

More and more Mendocino County defendants are thinking they’d also be better off with no lawyer rather than make do with Ms. Thompson. She takes on the big cases rather than farm them out to one of her underlings, all of whom are hired by her, a reality that doubles the fear she inspires in what we might call "the defendant community."

Timothy S. Elliott, formerly of the Hopland rancheria, was recently convicted of second-degree murder. The prosecution's chief witness against Mr. Elliot was a seven-year-old, nine when he testified. Granted, it's not easy to cross-examine a kid. You don't want to seem to be bullying a child. But Ms. Thompson couldn't shake the boy's story which, basically, was that he happened to be taking a break from a long night of video games and was looking out his window when, a good distance away, he saw one man punch another man in the stomach.

The punch was the culmination of a rez party, which meant multiple persons engaged in multiple substance abuse punctuated by fistfights and, finally, the stabbing death of one of the young revelers.

The boy saw what he saw, but if Mr. Elliot had had the dough to hire a private defense attorney it is unlikely he would have been convicted. I mean, come on: A seven year old looking out his window in the middle of the night?

That's not much of a case.

And now, having been convicted and unhappy with Ms. Thompson throughout, Mr. Elliot thinks he would have been better off with no lawyer.

Two weeks ago Mr. Elliott filed a Marsden motion to get rid of Ms. T as his lawyer. He wants to try to get a new trial on the grounds that she was ineffective.

Rumor around the Courthouse has it that Mr. Elliot been consulting with Mr. Sunkett, also a Thompson vic. Sunkett also tried to dump Ms. T but Judge Brown ruled she'd done a swell job on his behalf.

And Judge Richard Henderson denied Mr. Elliott’s Marsden motion. He thinks Elliott had adequate representation and got a fair trial. Local judges always say that. Collegiality it's called, and if it comes at the expense of competence, well, these characters are all guilty anyway and what the hell. That's the thinking, although no one's going to come right out and say so.

So Elliott filed a Faretta motion. The Faretta motion basically says the defendant feels competent to defend himself — or, at least, he feels he's more competent to defend himself than his court-appointed lawyer. The Faretta is addressed to the court’s “sound” discretion.

When Elliott first made the request, Judge Henderson advised him to give it some serious thought.

A week whistled by and Elliott was back in court.

“Is that still your desire?” Henderson asked.

It was hard to hear Elliott’s reply because the correctional officers had decided to move a file of prisoners just then. The prisoners were doing the shackle shuffle, the carrot-suit scoot, right through the bailiwick, the guards waving their arms and ordering the crowd to clear off, to get out of the way.

Apparently Elliott answered in the affirmative because Henderson began advising him that, in His Honor’s opinion, he was making a big mistake.

“I don’t mean to embarrass you, Mr. Elliott,” Henderson said over the commotion, “but I need to get some information. Do you have a high school education?”

There was more confusion and noise in the courtroom and the judge called for order and quiet. As the racket subsided, Elliott was saying something about having worked in construction building modular homes.

“Yes, but have you had any additional education since high school?”

Elliott’s answer must have been heard by the judge, but few others heard it.

Henderson said, “I notice you have quite a number of previous convictions. Have you ever represented yourself before?”

“No.”

“Have you had any experience since high school that would help you in this matter?”

“I did my own Marsden motion,” Elliott said. “That’s all.”

“Is there anybody available to help you during the next six to eight weeks?”

“No. Nobody.”

“You are facing 16 years to life, and Mr. Killion for the prosecution is a trained, experienced and very capable lawyer. Do you understand?”

“Yes.”

“Do you know any of the grounds for a motion for a new trial?”

“I know ineffective counsel is one of them.”

“Yes, but there are various motions involved and some of these may require outside assistance. I want you to be aware that if you fail to bring up these motions it could restrict your chances for being granted a new trial. If you won’t take my advice, there’s not much more I can do. But my own opinion is that it’s more complex than you think. It requires a solid background in criminal procedure, and just because you think there might have been an error, that doesn’t mean you can get a new trial. Right now you have the assistance of a very good and well-trained attorney so I’m urging you to not turn down the help of the public defender. Do you want to waive time so you can think this over some more?”

“No.”

“Okay. The court finds that he does have the right to self-representation, although I think it is unwise, but that’s as far as I can go with it. The public defender is hereby relieved. I’m directing that she turn over all the files. How long will that take, Ms. Thompson?”

You can't fault Henderson for not warning Elliot that, basically, this is not a system that takes challenges to it lightly.

“Oh,” Ms. Thompson said. “I can provide all I have right away. I’ll go through everything and have it ready whenever the court wants.”

Henderson said, “What I propose to do is bring this back in 10 days, if we can have everything ready by then. I’ll direct the court reporter to prepare copies of the transcripts for Mr. Elliott as well."

Mr. Timothy Elliot was taken away to jail to begin his crash-course in lawyering.

The deputy and alternate public defenders came by to shovel abuse on me for “trashing” Ms. Thompson in last week’s paper.

"Trashing."

That's as articulate as they got.

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