I was in Judge Priver’s court at Alhambra Dept. 1 yesterday waiting to confer with the deputy DA before my client’s attempted robbery case would be called for a pretrial hearing. The DA was busy with an in-custody felony arraignment. The guy in the box wearing Jailhouse Orange was making the grave mistake of representing himself in a five count felony case involving possession of a gun by a felon and possession of crystal meth. The thing is, the defendant didn’t speak any English, so he had to have the help of a Mandarin interpreter. Due process problem no. 1: how was he supposed to represent himself without knowing English?
At first I thought Judge Priver started to go astray because after reading the complaint in open court, she asked the lawyerless defendant if – due process problem no. 2 – he wanted to waive reading of his constitutional rights (the rights to be represented by counsel, to a speedy and public trial, to not incriminate himself, to produce witnesses and evidence in his defense, to confront and cross-examine witnesses). Maybe she was testing him, I thought.
But then the guy pulled out a statement of no-doubt incriminating facts he wrote (in Chinese characters) and offered it to the court “…to explain how it happened…”. Judge Priver said she could not accept it and refused it. The court then started talking about whether the defendant really thought it was a good idea to represent himself, that maybe it was best for him to have a lawyer after all and that whatever was in the statement could be used against him by the government. It didn’t seem to sink in to the defendant who promptly offered this written statement to the DA.
Like all the lawyers in the room, the DA seemed uneasy about what was happening but eventually – and apparently reluctantly – took the statement (due process problem no. 3?) and had it photocopied so that he could return the original and keep the copy. At that moment, another lawyer in the courtroom who couldn’t take it anymore volunteered for a moment as amicus curiae (a “friend of the court”). I was chomping at the bit too, but forced myself to kept my mouth shut because: (1) I didn’t want my paying client thinking I was taking away from him by helping this guy for free; and (2) I didn’t want to get dragged into this guy’s self-made problems because I have enough on my plate right now. Anyway, this other lawyer, God bless him, risked getting sucked in to talk briefly with the defendant who, moments later – voila and no surprise – asked for and got a public defender.
To me, what happened yesterday was more than professionally interesting. It was an illustration of the limits of due process in America. Speaking from a defense perspective, a less conscientious judge and prosecutor could have let this guy get railroaded, but not here today in this court.
Probably in no other country – from the beginning of time – would a person enjoy the level of substantive and procedural due process we take for granted here in America. Yes, the system frequently falls way short, but yesterday I was proud of what I saw – of Judge Priver, of the lawyer who stood in (I found out later he’s my friend Mike Kachoeff’s good friend) and of the DA who, despite an obvious reluctance, capitulated (wrongly?) to Judge Priver’s “request” (or shall we say implied order?) to return both the original and the copy of the statement to the defendant. (If I were the DA, I would have probably taken a different course.)
There the defendant was – on the precipice, ready to plunge again into the abyss, and the court’s neutrality and respect for our ways protected him – this guy from China who couldn’t speak English. Maybe, arguably, Judge Priver protected the defendant more than she should have. Maybe she thought the proceedings might have been vulnerable to reversal on appeal because he had not yet had his rights read to him. Who knows. But what I saw Wednesday morning, March 9, 2011, at the Superior Court of California for the County of Los Angeles, Northeast District, Alhambra Courthouse Dept. 1, made me proud to be an American lawyer.