Indigent defendants should have a lawyer

info@islandpacket.comOctober 13, 2013 

Some defendants facing jail time in municipal court aren't getting the legal help they're entitled to, and the people who can fix that are too busy pointing fingers to do something about it.

At issue is a simple precept: If you face losing your freedom, you should have legal counsel even if you can't afford to pay for it.

State and U.S. Supreme Court rulings require that anyone living below federal poverty guidelines who is charged with an offense that could result in jail time, including a misdemeanor, be provided a lawyer. Even a relatively short time in jail can have a long-lasting impacts on someone's life.

Unfortunately, that's not happening in many municipal courts in South Carolina. The American Civil Liberties Union of South Carolina charges that thousands of defendants are not being informed of their constitutional right to an attorney or are being coerced into waiving that right to avoid additional jail time.

Out of 300 municipal courts in the state, only three -- Rock Hill, North Charleston and Charleston -- provide public defenders, according to state court officials.

Money is at the root of this problem, and it shouldn't be. A fundamental right to legal representation shouldn't fall to budgeting decisions of state and local officials.

In Beaufort County, municipalities, the 14th Judicial Circuit and the Public Defender's Office are at an impasse over who's responsible for resolving this issue.

Until 2007-08, public defenders were available in municipal courts on Hilton Head Island and in Beaufort, Bluffton, Port Royal and Yemassee.

But in 2007, the legislature adopted a unified, statewide public defender system, creating public defender positions in each of the state's 16 judicial circuits, paid for by counties and the state.

Public defenders contend that under the new system, they are not required to represent defendants in municipal courts, which are separate from the state court system and created by towns and cities.

Fourteenth Circuit Public Defender Gene Hood says his office doesn't have the manpower or the money needed to provide public defenders in municipal courts in the five-county circuit. He points to the municipalities, which he says should hire private attorneys for poor defendants.

Municipalities point to the county, contending they already pay the county and state for public defenders through county taxes and court fines sent to the state. They also say municipal judges can't appoint private attorneys for indigent defendants; only circuit judges can do that.

Hilton Head Island staff attorney Brian Hulbert points to 14th Circuit Court Judge Carmen Mullen. Hulbert says she has declined to appoint private attorneys for municipal cases, arguing the attorneys are already overworked and are needed to handle felony cases in higher-level courts.

To muddle things further, the state Attorney General's Office said in a 2009 opinion that public defenders should represent eligible defendants in municipal court. But the opinion also states money and manpower sometimes make that impossible. That's when private attorneys should be appointed.

Some municipal courts have tried to work around the issue by taking jail time off the table as punishment or by getting a prosecutor from a nearby community to defend people eligible for representation and facing a possible jail sentence. The latter is a far better solution than ignoring a potential punishment called for under the law.

Ultimately, this is the responsibility of municipalities who chose to set up their own courts. With the relatively small number of cases involving jail time at this level of the judicial system, it is a solvable problem.

Do what's right and make sure people who qualify have the legal defense they need.

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