Everyone assumes but no one offers proof. That changes with this post.
I’m sure you have heard that public defenders work with the state to put people away. At best they have too many cases to give any case it’s due. People say it but no one offers proof. I have seen the truth for myself after a discrimination lawsuit taught me just enough to really spot unfairness.
When I deal with someone who lies to me I check the person out by using publicly available records to see if their self revelations match the record.
I access publicly available court records. No, these records do not appear in a Google search. The Hawaii court records system is user unfriendly. It is so difficult to use the Hawaii court records site, called Ho’ohiki, I doubt I could figure it out if I hadn’t stumbled upon it years ago when it was easier to understand. Anyway, I was dealing with someone I kept catching in lies. She said she had done time. If this was true I could enter her first and last name in the Ho’ohiki site and pull up all of her involvement with the Hawaii criminal justice system. I inputted her name and there were her records, available for my perusal. I looked over the court notes section. The notes section is not verbatim like a transcript and I don’t know who summarizes court proceedings. Some unnamed court official is present in the court room and they use their discretion to summarize what happened in coury. The site is very clear about making no guarantee of accuracy, nonetheless, it is helpful and fascinating.
I represented myself in federal court and worked out a settlement with the judge and, not one, but two lawyers from the attorney general’s office. All three were working against me and I prevailed, somewhat.
To pull of this achievement of developing a mutually dissatisfying settlement agreement, I had to learn basic court vocabulary from a starting point of zero knowledge. I learned that if an attorney wants the judge to do something he must ask the judge, or “the court,” in writing. This written request to the court is called a motion. The opposing side always has the right to oppose a motion in writing. If there’s no opposition, the motion passes and the judge takes the requested action bc the other side’s silence is legally taken as agreement. Years ago, a former defendant someone told me that not every person who returns to prison is automatically considered a repeat offender. The prosecutor must ask the judge to apply that designation, with the enhanced sentencing that accompany the designation. The person told me he did not have a public defender but a “real lawyer.” He had a co-defendant in his case and only one defendant can be represented by the public defender’s office bc of conflict of interest reasons. Through a procedure I do not have information about, the other defendant is appointed a private attorney. His private attorney objected to the prosecutor’s motion to designate him a repeat offender, and the judge did not brand him a repeat offender. No one knows that this status is discretionary bc it appears the designation is automatic. It is not.
I pulled up this lady’s records on Ho’ohiki to see if I could learn about her.
I was able to read the records with more understanding after representing myself in my federal civil rights case. Sure enough, there was a motion from the deputy D.A. to give her repeat offender status. She was not automatically labelled, yet when I initially scanned the records cursorily I saw she was considered a repeat offender what happened? Had the judge overruled her public defender’s objection? I perused the online document and found–nothing. No objection from her representative. No opposing motion asking the judge to deny the deputy district attorney’s motion. When court is in session a motion can be made orally, so her representative did not need to write anything. He could have objected effortlessly. But he did not. Public defender’s never object to motions to designate people repeat offenders. Public defenders do not tell their clients the significance of what the prosecutor is saying. Nor do they tell clients about the option to oppose the motion. They just let it happen and they have to know what they are doing–or not doing.
So what? Defendants are bad. That’s why they got arrested in the first place. Right?
In the United States of America only certain people have the authority to take away other people’s rights and even then, only under highly regulated circumstances. I’m talking about being a judge or one of 12 on a jury deciding guilt. No determination is made about good or bad, worthy or unworthy. Not even innocence, bc not guilty is not the same as innocent. If an individual does not occupy one of these 13 spots, he hasn’t the authority to do what people do all the time–decide who is good enough to enjoy the benefits of the Constitution. It is my hope that no matter what people think, people cannot implement personal rulings of worthlessness. Moreover I am a big fan of the under appreciated concept of innocent until proven guilty. I know repeat offender status has to be decided before sentencing bc it has sentencing ramification. Ok, sure, maybe the person has pled guilty but they have not yet been officially convicted at this point.
Almost everyone is not qualified to understand the deliberately obfuscating legalese they need to know to defend themselves from the public defender.
Without even a modicum of legal knowledge she would’ve had no way to know exactly how she was being screwed over. She would only have the undefinable, but definite all the same, feeling that she was not getting a proper defense. Many people feel the impropriety, but they cannot point out the exact mechanism. It is that feeling of unease and confusion that prompts people to use phrases like public pretender. You can’t fool all of the people all if the time. But until I read this lady’s records, the system in Hawaii was using this one method to fill the prisons for as long as possible without anyone being the wiser. Any claims of ineffectual assistance of counsel were often not supported by facts and therefore, never got anywhere on appeal. I hope to change this one little thing. Here’s how you can help:
SOLUTIONS–I learned about the legal system the hard way so you don’t have to.
If you or someone you care about is pre-trial, meaning there are pending charges that have not been settled through a dismissal, a not guilty verdict, or a guilty verdict and sentence. If you still have to go to court and you have a public defender, or even a private attorney, to his post has informed you to pay attention to motions that are filed. You’re supposed to receive written notification of events in your case. When I was in jail, (pre-trial) I only saw one person receive written notification of goings-on. She had a local hot shot for an attorney named Miles Breiner. No one else received paperwork unless they went to court. Make sure you tell your representative that you want to receive notification by U. S. Mail of all events, like motions that are filed. Put your request in writing and mail it to the judge the deputy district attorney and your attorney. The judge will scold you for contacting him and you explain you wanted your request in the official court record and did not know how else to make that happen. (It’s true, I don’t know but this the best info I have right now). I would expect that request will make it into the official record that anyone can look up afterwards. Only the contents of the official court record are subject to appeal bc they are the only things appellate court justices see. It’s ridiculous that you have to request ethical treatment, but you do. Not to say you’ll absolutely be treated properly. However in my experience attorneys and used car salesmen treat you waaaay better if they think you know what’s up.
All motions should be followed by opposing motions
The opposition motion is the only chance there is to object to the issue in the motion. Silence equals consent. Miss that chance to object to the repeat offender designation and that’s it, that’s all. Done deal. It is essential that you follow motions and the rulings on motions. Wait, let me think… Unless…maybe if you read this post and look over the court docket in your case and see your attorney failed to oppose motions… maybe you could appeal on a concrete example of ineffectual assistance of counsel. If someone you know is in prison and handling their own appeal, share this post with them as an actionable suggestion for appeal. My goal is to provide specific, applicable examples of lessons I learned to ease people’s difficult journey through the criminal justice system.
I will share this post to my quora.com content where I write under the screen name “Incarceration Advisor–Lessons From Harvard to Handcuffs in Hawaii.” I accept questions directly from readers struggling to navigate the unknowable world hidden behind walls and razor wire. I have never promoted my writing and tens of thousands have viewed my work. Now I am promoting your chance to know essential facts the system won’t tell you.