Courts Sidestep the Law, and South Carolina’s Poor Go to Jail

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Courts Sidestep the Law, and South Carolina’s Poor Go to Jail

By: Timothy Williams, Source: NY Times, Originally Published: October 12, 2017

 SUMTER, S.C. — Larry Marsh has a history of mental illness and drug addiction. Homeless, he has no place to go. The police in this city have arrested or cited him more than 270 times for trespassing. In December, they got him four times in one day.

For this misdemeanor offense, Mr. Marsh, 58, has repeatedly served time in jail, and was even sent to prison. Not once has he had a lawyer.

Being represented by a lawyer is a fundamental right, enshrined in the Sixth Amendment and affirmed by the Supreme Court, which has ruled that anyone facing imprisonment, even for a minor offense, is entitled to legal counsel. But the promise has been a fragile one, with repeated complaints that people without means are stuck with lawyers who are incompetent, underfunded or grossly overworked.

In municipal courts that handle low-level crimes, poor defendants can face a worse problem: no lawyer at all. Recent reports detail a failure to provide lawyers in Nashville and Miami-Dade courtrooms, and in 2015, Charles E. Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, held hearings on the issue, saying the right to a lawyer was frequently ignored in misdemeanor cases.

In Mr. Marsh’s case, lack of legal assistance contributes to a senseless churn through the criminal justice system at great taxpayer expense. In July, a few hours after being released from prison, he was arrested and sentenced to another month in jail. He is due in court again on Thursday afternoon.

Defendants in such cases are typically offered a choice between a $250 fine, which Mr. Marsh cannot afford, or 30 days in jail. Jailing Mr. Marsh costs the city $1,650 a month.

He is arrested so often, he says, because as soon as he is spotted by employees of Sumter’s businesses — the post office, fast-food restaurants and convenience stores — they call the police.

Police Chief Russell F. Roark III said his officers had little choice but to arrest Mr. Marsh.

“He scares customers, so we have to intervene,” Chief Roark said. “But we attempt to do other things than make arrests,” like issuing tickets.

A lawyer could go beyond Mr. Marsh’s guilt or innocence, by pressing for solutions like treatment instead of jail.

Mr. Marsh, who suffered a head injury as a teenager, has no one else to look out for him. He has long been out of touch with family members and says he has no friends.

His disability payments are disrupted every time he goes to jail, leaving him penniless on release. He is at the mercy of the South Carolina municipal courts, an idiosyncratic system in which police officers serve as prosecutors, judges are not required to have college degrees, and public defenders are often absent.

Tess Borden, a lawyer with the American Civil Liberties Union, said 139 of the state’s 212 municipal courts have no public defenders available.

The A.C.L.U. filed a federal class-action lawsuit on Thursday against the city of Beaufort and the town of Bluffton, saying they are violating defendants’ rights. They hope for a ruling that sets a statewide precedent that all jurisdictions must provide lawyers.

Municipal courts, which handle traffic violations and other low-level crimes, are optional for South Carolina cities, which can choose to rely on state courts to hear the cases. They can be lucrative: the state’s 212 municipal courts collect some $20 million a year in fines and fees. Last year there was nearly one municipal case for every nine adult residents.

“Under South Carolina law, municipalities that choose to establish their own courts have a duty to fund public defense,” Ms. Borden said. “Yet the majority of cities and towns flout this obligation, prosecuting poor people without spending a dime on their defense. The result is a grossly unconstitutional system in which lawyers are luxuries available only to those who can afford them.”

It is not clear what entity has the ultimate authority for the state’s municipal courts. Tonnya K. Kohn, administrator for the state Office of Court Administration, said that her office played no role in oversight of municipal courts and that the State Supreme Court was responsible.

But Daniel E. Shearouse, the Supreme Court’s clerk, said Wednesday that the Office of Court Administration — and not the Supreme Court — oversaw municipal court activities. Both Ms. Kohn and Mr. Shearouse declined to comment about defendants not being informed of their Constitutional rights.

In Beaufort, officials did not respond to requests for comment Wednesday, but in an email statement, Debbie Szpanka, a spokeswoman for Bluffton, said: “Bluffton municipal judges inform defendants who appear before the bench that he/she has a right to counsel and if he/she is unable to afford to hire a lawyer that a lawyer will be appointed.”

In the Sumter courtroom where Mr. Marsh has been found guilty dozens of times, judges on a recent day spent minutes on all but a few of the 85 cases involving traffic violations, disturbing the peace, or shoplifting.

Not a single defendant had a lawyer. Police officers, reading from arrest reports, acted as prosecutors and witnesses.

Judge Kristi Curtis told the few defendants who pleaded not guilty that they had the right to a jury trial, but that they would have to wait four to six weeks — meaning those who could not make bail would go back to jail, potentially waiting there longer than the 30-day maximum sentence most could have received.

Pausing, the judge added, “Or, I could decide the case right now.”

Nearly everyone chose a bench trial. Judge Curtis informed each of their right to an lawyer. Only one man requested one, but there was no public defender — a lawyer paid by the government to represent poor defendants — in the courthouse. The man had to return to jail until a later date.

Some jurisdictions hire indigent defense lawyers for their municipal courts on a per-case basis, while Sumter and other cities have fixed-rate annual contracts in which public defenders’ offices receive a specific amount no matter how many clients they represent. Jack D. Howle Jr., the local public defender, has a contract to provide lawyers in municipal court. He declined to comment.

Demographics suggest that many in the court would have qualified for a public defender: Almost one in five people in Sumter, a city of 40,000, live below the poverty line, and criminal defendants are generally overwhelmingly poor.

Still, while nearly one in five inmates in the city’s jail on that afternoon were held solely on municipal court charges, records showed none was represented by a lawyer.

In court, the defendants who declined a lawyer were not told, though the law requires it, that a lawyer would be provided and paid for if they were unable to afford one. Nor were they asked, as they were supposed to be, whether they understood the risk they were taking by waiving their right to one.

Several defendants, clearly unnerved by the prospect of arguing a case in front of a judge, turned and desperately appealed to family members or friends for advice.

The officers’ accounts went generally unquestioned by the judge. The defendants did not challenge them with a single question. Judge Curtis, who afterward declined to comment, found nearly everyone guilty.

Christopher Wellborn, a criminal defense lawyer who regularly represents clients in the state’s municipal courts, described them as having a “banana republic patina.”

Mr. Wellborn said they were missing a critical step: having prosecutors evaluate evidence before deciding whether to file charges.

“You can’t be an independent witness to an event and then prosecute the same event and think you can be impartial,” Mr. Wellborn said.

The A.C.L.U. did not target Sumter, but its plaintiffs show how bewildered defendants can be when left to represent themselves. One, Dae’Quandrea Nelson, 19, was on trial in Bluffton for fighting at his high school when the arresting officer showed a video of the fight. But the person he identified in the video as Mr. Nelson was someone else.

When Mr. Nelson, who said he was never told of his right to a lawyer, interrupted to say so, the officer corrected himself.

Still, the trial lasted eight minutes, and Mr. Nelson was found guilty and sentenced to 30 days in jail, causing him to lose his job at a restaurant.

Tina Bairefoot, 39, had no lawyer when she told a municipal court judge in Beaufort County that a combination of medications after surgery had caused what she called a “psychiatric episode” involving hallucinations. The episode, which occurred at a Walmart, ended with her arrest on shoplifting charges.

The judge, though skeptical, told Ms. Bairefoot that she could return to court with letters from doctors substantiating her claim. But when she did, he refused to look at them, she said, instead gesturing to a door at the side of the courtroom.

“He pointed and said, ‘Off to jail,’” Ms. Bairefoot said, recalling the exchange.

Mr. Marsh, interviewed in July at the Sumter-Lee Regional Detention Center, said people in Sumter called the police before even speaking to him. “They are harassing me and I don’t know why,” he said of the town’s residents and the police.

Asked how long it would take before he was rearrested, Mr. Marsh shrugged. “No time at all,” he said.

A few days after he was let out, he was back in jail.

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