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Civil and Criminal Cases + How Courts Work // Steps in a TrialThe law deals with two kinds of cases. Civil cases involve conflicts between people or institutions such as businesses. A civil case usually begins when a person or organization determines that a problem can’t be solved without the intervention of the courts. In civil cases, one (or more) of these persons or organizations brings suit (i.e., files a complaint in court that begins a lawsuit).

9th Circuit Says Public Defender Can Be Sued
Jason Hoppin
The Recorder

The 9th U.S. Circuit Court of Appeals put public defender offices on a liability hot seat Monday by reinstating the case of a convicted murderer who said his lawyer's ineffective assistance violated his civil rights.

In siding with Roberto Miranda, a man who spent 14 years on Nevada's death row, an en banc panel sent a strong signal that counties risk hefty civil judgments if they don't adequately fund public defender's offices.

"This decision should be brought to every government official who has some impact and decision-making power over public defender budgets," said San Francisco Public Defender Jeff Adachi.

The court voted 7-4 to reinstate Miranda's lawsuit against the Clark County public defender. He blamed his prison stay on an inexperienced prosecutor and office spending policies. After his conviction was tossed out on appeal, he sued his former lawyer, the public defender and Clark County. The district court said the claims were baseless, and a three-judge 9th Circuit panel agreed.

Ninth Circuit Chief Judge Mary Schroeder, writing for the majority, affirmed the dismissal of the claims against Miranda's lawyer, who was trying his first murder case. The man acted as Miranda's lawyer, not as an agent of the state -- even though, Schroeder wrote, he "did essentially nothing." She distinguished between a lawyer making independent decisions on behalf of a client and decisions based on an office's allocation of resources.

But former Clark County Public Defender Morgan Harris was an agent of the state, the court ruled, so those claims were reinstated. Harris used polygraph tests to help determine how much money and time to spend on clients, and Miranda failed his.

Judges Andrew Kleinfeld and Barry Silverman wrote separate dissents from the reinstatement of claims against Harris. However, Silverman and fellow dissenters Joseph Sneed and Thomas Nelson voted to reinstate the claims against Clark County itself, making the vote on that claim 10-1.

"The county doesn't have anything to do with assigning work to public defenders and doesn't have anything to do with training or licensing lawyers," Kleinfeld wrote in Miranda v. Clark County, 03 C.D.O.S. 1037. That is up to law schools, he explained.

One of Miranda's Wyoming lawyers, Spence, Moriarity & Shockey partner J. Douglas McCalla, said lawyers aren't ready to try murder cases out of law school without additional training.

"When you get out of law school, you don't know where to file a case, much less defend capital cases," McCalla said.

Based on the tip of a man Miranda's lawyers believe was the real killer in the 1981 stabbing, the 59-year-old Cuban immigrant was tried and sent to death row despite providing a list of dozens of witnesses, most of whom were never interviewed. He was released 14 years later when a Nevada judge ruled his lawyer was ineffective. He was never retried.

Miranda has an ongoing civil rights lawsuit against two Las Vegas police officers who worked on his case. Both McCalla and his associate, Larissa Ferullo, didn't think Monday's decision would lead to an outbreak of civil rights claims against public defenders.

"I don't think it's going to open ineffective assistance floodgates. ... I don't think it's going to affect every little thing," Ferullo said.

AFRA thinks this SHOULD "open the floodgates", especially when CA's apparently work on behalf of CPS, not parents. Here's some choice tools-

Competent Counsel Cites


The Problem with Plea Bargaining

Marsden Hearing

Contract for Court Appointed Attorney


Things to advise your attorney in writing:

To Lawyer: Instructions of things to be done

Definition of Due Process - (Someone tell the judges)
The Public Defender Creed"I am a public defender. I am the guardian of the presumption of innocence, due process, and fair trial. To me is entrusted the preservation of those sacred principles. I will promulgate them with courtesy and respect but not with obsequiousness and not with fear for I am partisan; I am counsel for the defense. Let none who oppose me forget that with every fiber of my being I will fight for my clients. My clients are the indigent accused. They are the lonely, the friendless. There is no one to speak for them but me. My voice will be raised in their defense. I will resolve all doubt in their favor. This will be my credo; this and the Golden Rule. I will seek acclaim and approval only from my own conscience. And if upon my death there are a few lonely people who have benefited, my efforts will not have been in vain."

-- Jim Dougherty, Cook County, KY Public

Sounds good, doesn't it? Maybe now, they will get SERIOUS about it.


§ 317.5. Competent counsel; entitlement; dependency proceedings
[West's Ann. Cal. Welf. & Inst. Code § 317.5 (West LawDesk CD-ROM through 1999 portion of 1999-2000 Reg. Sess. and 1st Ex. Sess.)]

(a) All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.
(b) Each minor who is the subject of a dependency proceeding is a party to that proceeding.

CREDIT(S) (Added by Stats.1994, c. 1073 (S.B.783), § 1.)
Research References Law Review And Journal Commentaries

Who speaks for the child in abuse cases: Autonomy or best interests?
William Wesley Patton, 40 Orange County Law. 40 (November 1998).
1998 Main Volume
Collateral References: Notes Of Decisions

Competence 1
Review 2

1. Competence

Parent seeking review of claimed violation of statute providing that parties to dependency proceeding shall be entitled to competent counsel must show that counsel failed to act in manner to be expected of reasonably competent attorneys practicing in field of juvenile dependency law, and must also establish that claimed error was prejudicial. In re Kristin H.(App. 6 Dist. 1996) 54 Cal.Rptr.2d 722, 46 Cal.App.4th 1635, review denied. Mother's attorney failed to act in manner to be expected of reasonably competent attorney acting as diligent advocate in juvenile dependency proceeding for purposes of mother's claim of violation of statute requiring representation by competent counsel at dependency proceedings; there was no tactical or practical reason why attorney failed to present report from doctor which was highly favorable to mother and which refuted other doctors' reports that mother was mentally ill and incapable of caring for her child.

In re Kristin H.(App. 6 Dist. 1996) 54 Cal.Rptr.2d 722, 46 Cal.App.4th 1635, review denied. Mother's attorney's incompetence in failing to present doctor's report which opined that mother was able to care for her child constituted prima facie showing of prejudice in juvenile dependency proceeding and, thus, remand would be required to determine whether mother is entitled to new trial on grounds of incompetent counsel; result of dependency might have been different if attorney had presented doctor's report, since it was virtually only evidence in mother's favor and refuted testimony of other doctors who claimed that mother was not fit to care for her child. In re Kristin H.(App. 6 Dist. 1996) 54 Cal.Rptr.2d 722, 46 Cal.App.4th 1635, review denied.

2. Review

Statute which provides that all parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel includes right to seek judicial review of claims of incompetence of counsel; statute was intended to protect parent's fundamental liberty interest in maintaining parent-child relationship and child's fundamental independent right to be part of family unit, and such rights are not protected if competent counsel is not ensured through judicial review. In re Kristin H.(App. 6 Dist. 1996) 54 Cal.Rptr.2d 722, 46 Cal.App.4th 1635, review denied.

Violation of statutory right to counsel in juvenile dependency proceedings is properly reviewed under harmless error test; thus, parent must demonstrate that it is reasonably probable that result more favorable to parent would have been reached in absence of error. In re Kristin H.(App. 6 Dist. 1996) 54 Cal.Rptr.2d 722, 46 Cal.App.4th 1635, review denied.


The Constitutional Right to Be a Parent

Below are excerpts of caselaw from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.

No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.

"Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights." P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)

"Parents right to rear children without undue governmental interference is a fundamental component of due process."
Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)

The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).

The United States Supreme Court has stated: "There is a presumption that fit parents act in their children's best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason or compelling interest for the State to inject itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children. Reno v. Flores, 507 U. S. 292, 304. The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000).

Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).

Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).

Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .

The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).

Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).

Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).

The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).

Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of "liberty" as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).

"Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).

A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.

The Court stressed, "the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).

Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).

The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).

The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence --life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution -- No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).

The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).

No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).

A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).

A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).

Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.

Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).

The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).

Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).

State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).

The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).

The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).

The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional underpinning of ... a recognition that the "liberty" protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life." The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).

One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, "more precious than mere property rights," is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Moreover, the fact that the custodians are grandparents rather than parents is legally insignificant, because families headed by extended family members are entitled to the same constitutional protections as those headed by parents, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) Even relatives who are licensed as foster parents enjoy the same constitutional rights as other custodial relatives. Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).

Because of the magnitude of the liberty interests of parents and adult extended family members in the care and companionship of children, the Fourteenth Amendment protects these substantive due process liberty interests by prohibiting the government from depriving fit parents of custody of their children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). In the United States Supreme Court’s view, the state registers "no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children." Stanley, 405 U.S. at 652.

Grandparents are also entitled to procedural due process. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950)).

The grandchildren have a Fourth Amendment right not to be seized by the government for child protective purposes unless it has probable cause to believe that the children have been neglected. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Probable cause exists only if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).

Grandparents cannot be dismissed from the dependency case because the dependency case is the only legal way that the state can interfere with their custody. The state must prove that they are abusive or neglectful and that the children would be at risk of immediate serious harm if returned.


In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: 'The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.' Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.

The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through 'bone of their bone and flesh of their flesh'; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.

Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)


The Problem with Plea Bargaining
(c) 1994-1998 Steven Silberblatt
QUESTION: To be "voluntary" within the meaning of the Fifth Amendment, a statement by a criminal defendant must be a product of free will, unencumbered by threats or promises. Coercion of any kind, whether physical or psychological, is prohibited, and a statement found to be involuntary will (theoretically, at least) be suppressed.

That being the case, why is the Criminal Justice System permitted to make promises (of leniency, e.g.) and threats (of maximum time after a trial conviction) in order to induce defendants to give up all of their constitutional trial rights, including the right to remain silent?

How can the Criminal Justice System get away with violating the very constitutional rights it functions to protect in order to conduct its everyday business of plea bargaining?ANSWER: In theory, the fact that a defendant is in a court environment, surrounded by all the trappings of due process (including the creation of a formal record for appellate review, a judge sworn to uphold the law, and counsel for his defense) protects her from the possible abuses which might take place in the back room of a precinct station house, were the police allowed to engage in the same "bargaining" process in order to elicit confessions.

The role of counsel is critical to justify what the system does; in theory, if there were something legally or factually wrong with the process, counsel would be there to register an objection and to prevent the plea from being entered.

In fact, however, the vast majority of defendants plead guilty because the system makes them "an offer they can't refuse, " much like the mob. The system functions like a gigantic extortion racket in which the attorney plays the role of "bagman," the person who transmits the threats (under the guise of legal advice) and collects the payment (the plea).

To the extent that the attorney loses bail arguments or pre-trial motions to suppress, a defendant's faith in the powers of his lawyer and/or the integrity of the system is eroded to the point where resistance seems futile.

Lengthy pre-trial incarceration further weakens and demoralizes a defendant and increases the coercive aspects of plea bargaining (particularly where, as in the case of many indigent defendants unable to post bail, taking a plea is the only sure way to regain personal freedom).

The system "gets away" with it because there is no economic alternative, not because anyone really believes the justifications recited above. Formal procedural justice (the complex rules which govern criminal trials) was never intended to cope with the volume of cases now being sucked into the vacuum cleaner of the system.

As more conduct is criminalized, and more defendants need to be processed, criminal trials are a luxury which society can no longer afford, except in the most serious or unusual case.

We function schizophrenically; our legal ideology is bound to a system of values we no longer actually cherish, and are unwilling therefore to finance.

Like a Hollywood set, our system presents to the public a facade of "rights" while the same system systematically violates those rights as the only means to insure its own survival.

Last updated on September 25, 1998


It is the centerpiece of America's judicial process: the right to a trial by jury system that places a defendant's fate in the hands of a jury of one's peers. But it may surprise many to learn that nearly 95 percent of all cases resulting in felony convictions never reach a jury. Instead, they are settled through plea bargains in which a defendant agrees to plead guilty in exchange for a reduced sentence.

"The real American justice system is unlike anything depicted on Law & Order and Court TV," says producer Ofra Bikel. "I know I was stunned when I realized that only about 5 percent of all felony convictions result from jury trials. The rest are settled by plea bargains. And these deals aren't always to the defendant's advantage."

"The Plea" tells several stories -- different people, different charges, different parts of the country, all with one thing in common: the difficult dilemma of confronting a plea. The program also interviews experts on the criminal justice system.
"The Plea" is Ofra Bikel's latest investigation into America's criminal justice system. Her previous reports include "The Burden of Innocence," "Requiem for Frank Lee Smith," "An Ordinary Crime," "The Case for Innocence," "Snitch," and the trilogy of programs entitled "Innocence Lost".

When Charles Gampero, Jr. was arrested and charged with murder in the second degree in 1994, the 20-year-old insisted he was innocent. While admitting to having hit the victim while trying to break up a fight outside a bowling alley on the night in question, Gampero said the victim was very much alive when he left him.

Given numerous unanswered questions in the case -- including statements by the victim's family, who said the man had been the target of harassment and vandalism by unknown parties in the weeks before his death -- Gampero was convinced that a jury would believe his story and acquit him of the charges.

But a jury would never hear his case. After jury selection had begun, Gampero and his family say the judge pressured the young man to accept a plea bargain that would send him to prison for seven to 21 years.

"[The judge] told me point blank—he said, 'I will give your son 25 to life, so you better take the plea, or if you don't take the plea, he's getting it,'" says Charles Gampero, Sr., whose son is now entering his ninth year in prison. "We took the plea agreement thinking that the judge knew what he was talking about and my son would be home by the time he's 27," Gampero Sr. says. "It didn't work out."

To overworked and understaffed defense lawyers, prosecutors, and jurists, plea bargains are the safety valve that keeps cases moving through our backlogged courts.

"The system would collapse if every case that was filed in the criminal justice system were to be set for trial," says Judge Caprice Cosper of the Harris County Criminal Court in Houston, Texas. "The system would just entirely collapse."

Critics, however, contend that the push to resolve cases through plea bargains jeopardizes the constitutional rights of defendants, who may be pressured to admit their guilt whether they are guilty or not. In Erma Faye Stewart's case, for example, she says her defense attorney encouraged her to accept a plea bargain when she was arrested in a major drug sweep based upon information provided by a police informant who was later deemed not credible. The 30-year-old mother of two steadfastly maintained her innocence, but says her court-appointed defense attorney didn't want to hear it.

"He was, like, pushing me to [plead guilty and] take the probation -- he wasn't on my side at all," says Stewart, who tells FRONTLINE that after spending 25 nights in a crowded jail cell, she decided to follow her attorney's advice. "Even though I wasn't guilty, I was willing to plead guilty because I had to go home to my kids. My son was sick."

After accepting the plea bargain and 10 years' probation, Stewart was freed. What she didn't know was that under the terms of her probation, she would be required to pay a monthly fee to her probation officer. Her felony conviction also meant that the single mother was banned from the federal food stamps program. Within three years of pleading guilty to a crime she says she didn't commit, Erma Faye Stewart had fallen behind in her probation payments and been evicted from her home.

"One reason that a lot of people plead guilty is because they're told they can go home that day, because they will get probation," says Steve Bright, a defense attorney and law professor who serves as director of the Southern Center for Human Rights. "What they usually don't take into account is that they are being set up to fail."

Other defendants in "The Plea" describe being pressured by prosecutors and judges into accepting plea bargains that resulted in them spending years behind bars for crimes they say they didn't commit. Those who refuse to cut a deal, insiders say, are often rewarded with extra-harsh prison sentences as a lesson to future defendants.

A case in point: Patsy Kelly Jarrett. In 1973, the 23-year-old North Carolina resident drove to New York with a friend for a summer-long vacation. It was only when the police showed up at her door three years later, Jarrett says, that she learned that sometime during their New York stay, her friend had robbed a gas station and murdered the attendant.

While the evidence against Jarrett's friend was concrete, the only evidence against Jarrett was the statement of an elderly witness who said he saw a car at the time of the crime with someone inside. The man did not know, however, whether the person was a man or a woman.

To avoid a trial, prosecutors offered Jarrett a plea bargain: If she would plead guilty to the robbery, they would drop the murder charge and give her a five- to 15-year prison sentence.

"I told my attorney, 'I can't, I can't do this,'" Jarrett tells FRONTLINE. "And he said, 'Well, my hands are tied. We want to drop the murder charge on you if you'll plead guilty to the robbery.' And I said, 'But I haven't robbed anybody.'"

Convinced that the jury would believe her, Jarrett refused the plea bargain and took her chances with a trial. She was convicted and sentenced to 25 years to life.

"I believed in the American system of justice," Jarrett says from the Bedford Hills Correctional Facility, where she has spent the past 27 years of her life. "I really believed that, you know, just tell the truth and the judge and jury will hear you and nothing will happen to you. But I was wrong…."

Twelve years into her prison sentence, Jarrett's case was reversed after the prison warden became convinced of her innocence and asked a new defense attorney to take up her case. The state decided to appeal the reversal, but first offered Jarrett another plea bargain: If she would admit to committing the crimes with which she was charged, she would be sentenced to time served and released.

In "The Plea," Jarrett's lawyers describe how they urged her repeatedly to take the plea bargain. She refused. The state won its appeal, and Jarrett's 25 years to life sentence was reinstated.

"It's just morally wrong to say you did something you know in your heart you didn't do," says Jarrett, who will not be eligible for parole until 2005. "I might have walked free physically, but in my spirit and in my soul, I would have had to have lived with that the rest of my life. And I couldn't live with me like that. I can live with me better in here."

Update: In the spring of 2005 Kelly Jarrett had her first parole hearing and was granted parole. She will be released June 13, 2005.


What is a plea bargain?

It is an agreement between the prosecutor and the accused in which the accused pleads guilty in exchange for a lesser sentence or a reduced charge. About 95 percent of all felony convictions in the United States are the result of plea bargains.
Explore the American Bar Association Standards on "Pleas of Guilty". These standards are meant to serve as a guide for policymakers and those working in the criminal justice system. The pleas section includes information on the roles and obligations of the prosecuting attorney, defense counsel and the judge in the plea process.

What is the standard argument in favor of plea bargains?

Pleading guilty instead of going to trial reduces uncertainty as to the outcome of a trial; in trying a case before a judge or before a jury of 12 people, the defendant cannot predict what ultimately will happen.

Plea bargains are also perceived as offering the accused a freedom of choice.

And, from the state's point of view, the main benefit of the plea bargain is that it saves time and money. Almost everyone acknowledges that the system would collapse if every case that was filed were to be set for trial; there is not enough money to try every case.

Experts point out some other benefits of pleas. Law professor Bruce Green tells FRONTLINE, "It… is in some ways fairer to witnesses and prospective jurors. Imagine if in all these cases, the victims and witnesses had to come to court to testify. And in all these cases, people had to leave their jobs in order to serve on juries. That would be very onerous for the public." Other experts note that pleas can get the accused out from under some harsh mandatory minimum sentences and rigid federal sentencing guidelines. And law professor Jonathan Oberman points out in his FRONTLINE interview, "… [a plea bargain] certainly is a good thing for someone who is guilty, someone who has factually done that which he or she is charged with doing, who is confronted with overwhelming evidence, and where the state is inclined to make some kind of offer because they would not want to put the victim, or families of the victim, or put the state, to the cost of proving the case at trial."

· What is a plea bargain?
· What is the standard argument in favor of plea bargains?
· What is the downside of plea bargains?
· After a defendant takes a guilty plea, can it later be withdrawn?
· What is behind the rampant growth of plea bargains?
· What is probation and what happens to an individual who gets probation?
· How are lawyers appointed for poor defendants?
· What is a judge's role in a plea bargain?
· Can the system be fixed?

For more on the plea system's benefits and its important role in the justice process, read FRONTLINE's interviews with Judge Michael McSpadden, and defense attorneys Abbe Smith and Bruce Barket.What is the downside of plea bargains?

The downside for the defense is that the accused is giving up the right to have 12 people hear all the evidence and test the prosecution's evidence against the defendant. The downside for the community is that it doesn't get to have a process which attempts to get at the truth of what really happened in the case. And, the plea bargaining system can be abused: It can extract guilty pleas from absolutely innocent people who plead guilty to charges they did not commit because they can't afford the risk of going to trial.

Law professor Stephen Schulhofer offers this general critique of the system: "The major problem with plea bargaining is that it forces the party into a situation where they have to take a guess about what the evidence is, about how strong the case might be, and they have to make that guess against the background of enormously severe penalties if you guess wrong. So defendants, even if they have strong defenses, and even if they are innocent, in fact face enormous pressure to play the odds and to accept a plea. And the more likely they are to be innocent, and the more strong their defenses are, the bigger discount and the bigger benefits the prosecutor will offer them. Eventually at some point it becomes so tempting that it might be irresistible, especially when the consequences of guessing wrong are disastrous.

"So the result is that the system as a whole doesn't do what we count on it to do, which is to sort out the guilty people from the innocent people. It doesn't do that because the guilty people and the innocent people are all faced with the same pressure to plead guilty."
For more on the drawbacks of the plea bargaining system, read FRONTLINE's interviews with law professors Albert Alschuler and John Langbein, and articles in the "Readings" section of this site.

After a defendant takes a guilty plea, can it later be withdrawn?

The actions that an individual can take to withdraw a guilty plea depend on how much time has passed since the plea was made. There is likely to be a short period of time during which a defendant may move to withdraw his or her guilty plea. After that, he or she may be able to appeal, or to seek state and federal post-conviction relief, or to seek executive clemency. The defendant should consult a lawyer about these possibilities if he or she can afford to do so.

If the accused cannot afford a lawyer, the first call should probably be to the local public defender agency. Even if this agency cannot help, it may be able to direct the defendant to other resources. A few states, like Indiana, provide lawyers in post-conviction proceedings who could file a habeas corpus attacking the plea. A few others, like New York and Massachusetts, have prisoner legal services organizations that might be helpful. There are also law school programs here and there, and national and state "innocence projects" also may be able to help in exceptional cases. Here is a list of innocence projects in the U.S. which has been compiled by the Northwestern University School of Law.
Also worth checking out is the National Legal Aid & Defender Association and the National Association of Criminal Defense Lawyers.

What is behind the rampant growth of plea bargains?

Plea bargaining has surged because there are more crimes and there are more petty offenses which now are criminalized (offenses such as failing to pay a bus fare, being an unlicensed vendor, petty burglary, shoplifting, etc.). Since going to trial is more costly and time consuming, plea bargains are a practical solution for the criminal justice system. And, as noted above, a guilty plea reduces uncertainty as to the outcome of a trial and is viewed as offering the accused a freedom of choice.

In addition, some legal experts maintain that the growth of plea bargaining is directly connected to the failures of the trial system. They say that today's jury trial has been captured by the lawyers and has become an "adversary jury trial" with an elaborate body of law -- law of evidence and certain other rules -- which is designed to control the legal combat. As law professor John Langbein tells FRONTLINE, "The ability of the lawyers in the O.J. case … to spin out the case forever and ever, their ability to dominate the jury selection in ways that was unheard of two centuries ago, all of that is the background to plea bargaining. As the jury trial becomes more and more time consuming, more and more complex under the weight of the lawyers' capture of the trial, we find that it becomes ever more costly to give people that which the constitution says they must have."

What is probation and what happens to an individual who gets probation as part of a plea bargain?

About 4 million Americans are on probation for their crimes. What probation means in the law is that if you plead guilty, you get sentenced -- typically to a prison or jail term -- but instead of going to prison or jail, you're placed on community supervision, which means you are placed on probation. You are monitored by a probation officer and typically have to see the officer monthly and abide by certain conditions. If you violate your supervision or don't follow one of the rules imposed, you lose probation and you go to jail or prison.

Probation rules and conditions might include submitting urine samples; being prohibited from leaving the state; being required to notify a probation officer before changing addresses; attending counseling, etc. If the individual fails to meet any one of these requirements, he or she could be in violation of probation and sent to jail.

There are also probation's financial costs. A person who is poor or of moderate means and is ordered to perform four, five, or 800 hours of community service while struggling to support themselves or their family, can be burdened with extra transportations costs, child-care costs, etc. in fulfilling the community service And if the individual misses community service after a month or so, probation can be revoked.

The individual on probation also must pay probation fees which vary from state to state and are meant to cover the cost of probation officers, drug testing, counseling programs, etc. Failure to pay these fees is a basis for sending people to jail. In his interview with FRONTLINE, defense attorney Paul Nugent outlines the typical probation costs and fees in Houston, Texas: " … you have to pay a fine, you have to pay a monthly service charge, sometimes $40, $50, $60 a month. You have to pay court costs. If you're making six or seven dollars an hour, which is more than minimum wage, there's no way you can pay all your expenses. … There are all these programs you're ordered to participate in, there's counseling for this and this and this program, and they all cost. This one costs $40 a week and this one costs $70 a month and this one costs $22 per visit."

How are lawyers appointed for poor defendants?

The U.S. legal system provides free attorney services for those who can't afford a lawyer, but the accused does not have a say in who is selected or whether or not the lawyer is good, or whether the accused likes the lawyer or not. Court-appointed lawyers are usually not well paid and can often be the least paid individuals in the courthouse. As defense attorney and law professor Stephen Bright told FRONTLINE, "So you have to ask yourself: Are the best lawyers who can command the best fees accepting these cases? Of course not. Does the client have any say? Is there any incentive for the lawyers to work hard, earn a good reputation, so that they get more cases? Not really, because they're getting the cases from the court, not from the client. …"
A Summary of ABA Hearings on Indigent Defense In 2003, the American Bar Association held hearings on the quality of legal representation being given poor defendants. Here are highlights of the hearings' findings and the conclusion that the hearings demonstrated, "… indigent defense systems across the nation remain in immediate and urgent need of substantial reform."

What is a judge's role in a plea bargain?

There are a variety of different forms of plea bargaining and there are versions in which the judge has a relatively passive role, and in which most of the pressures are brought by the prosecutor. This is typically called "charge bargaining." (In charge bargaining, the prosecutor threatens to bring a large number of charges or to intensify the charges and recommend the high end of the sentencing range.)

In other forms of plea bargaining, typically called "sentence bargaining," the judge may have a larger role and can be the real driving force. The standards of judicial ethics vary from jurisdiction to jurisdiction and so judges are more involved in some places than in others. In many jurisdictions, the judge may bring everybody back into his office and sit them down and pressure them until the cases get worked out -- particularly judges who want to get cases off their trial calendar.

The judge always has the power to reject the plea offer negotiated between the prosecutor and the accused, and many judges will, if they don't think the sentence is severe enough, or for other reasons.

Can the system be fixed?

Law professors Stephen Schulhofer and Albert Alschuler believe there is a way to ensure the defendant doesn't forego getting a public hearing while at the same time cutting down on the onerous costs of giving every defendant a jury trial. "The simple solution," says Schulhofer, "is to discourage plea bargaining by giving defendants an incentive to give up the jury only, and take their case to a trial before a judge."

Philadelphia's trial system largely has worked this way for decades says Schulhofer. "What happens is that well over 50 percent of the cases are tried before a single judge. About 5 percent of the cases go to a jury trial. And again, defendants know and lawyers know from experience that juries tend to react in certain ways to certain cases and that effects how judges will decide cases without a jury. A judge knows that a jury wouldn't convict in a certain type of case, he has to take that into account, or no defendant would accept a trial before that judge. At the same time the system can give slightly lower sentences, the gap obviously doesn't have to be as great because the defendant isn't giving up as much. This system has worked in practice very effectively for many, many years, so it's not an imaginary idea, and it essentially solves 99 or 100 percent of the problems we've been discussing."

Alschuler believes there are three ways to fix the system. "Plan A is just spend the money. We're one of the richest nations on the planet, and we've decided we can't afford to give criminal defendants their day in court? There's got to be something wrong with that picture, but the problem is that our trials are so over-proceduralized that maybe we can't afford to do that. … Plan B would be to simplify our trial procedures, and thereby make trials more available to defendants who want them. We don't need these prolonged jury selection procedures. We don't need the complicated rules of evidence; there are lots of other ways we could simplify criminal trials."

And Alschuler's Plan C is the city of Philadelphia's model -- a trial before the judge alone. "Why did that happen? Well, because in Philadelphia, as everywhere else, a defendant who asks for a jury and was convicted got a very tough sentence. But if a defendant asks for a trial before the bench, his sentence was not likely to be tougher than a guilty plea sentence. So guilty pleas were very low. The defendant was tried before a court in a relatively expeditious proceeding, typically taking only a half an hour for an ordinary street crime. That's a troublesome practice for some of the same reasons that plea bargaining is troublesome -- I mean, you've got a right in the Constitution to a jury trial. … But at the same time, this is a system where the defendant does have his say before an impartial third party, and he does not give up his chances of acquittal. …"


FRONTLINE's "Real Justice"
In Boston, as elsewhere in the U.S., plea bargaining is a crucial part of keeping the wheels of justice turning in the criminal courts. In this 2000 report, FRONTLINE offered an intimate look at the real-life world of Boston's prosecutors, defense lawyers, judges and defendants and the issues they confront in choosing between guilty pleas or going to trial.

"The Case Against Plea Bargaining" (PDF)
This 2003 Cato Institute article outlines the ways in which "the government retaliates against individuals who exercise their right to trial by jury." In particular, author Timothy Lynch looks closely at the 1978 U.S. Supreme Court decision Bordenkircher v. Hayes -- considered to be the watershed precedent for plea bargaining -- and explains why the Supreme Court got it wrong. [Note: This is a pdf file; Adobe Acrobat required]

The American Bar Association Standards on "Pleas of Guilty"
Intended to serve as a guide for policymakers and those working in the criminal justice system, these standards cover every aspect of the plea process, including the roles and obligations of the prosecuting attorney, defense counsel and the judge.

The Repeal of the Sixth Amendment by the Courthouse Crowd
Albert W. Alschuler and Andrew G. Deiss offer an overview of how and why plea bargaining has come to dominate America's justice system, chronicling the evolution in attitudes over the past two centuries toward plea bargaining and the U.S. Supreme Court's 1978 decision that upheld its constitutionality.

Personal Failure, Institutional Failure, and the Sixth Amendment
Albert Alschuler outlines the many ways in which the plea bargaining system promotes inadequate defense assistance and why inadequate counsel is far more likely to occur in guilty plea cases than in trial cases. He writes that ensuring the effective assistance of counsel "is and will remain a dream in our plea bargaining system" because America's system of criminal justice "makes it impossible to determine whether defendants have received the effective assistance of counsel."

Plea Bargaining Outside the Shadow of Trial (PDF)
The thesis of this article by Stephanos Bibas is that scholars are wrong in viewing the shadow of trial as the overwhelming determinant of plea bargaining -- "shadow of trial" meaning the influence exerted by the strength of the evidence in the case and the expected sentence after a trial. The author details the many structural impediments that distort bargaining, such as costs, poor lawyering and lawyers' self-interest, and also cites the psychological biases that can skew bargains including "… self-serving biases … denial mechanisms, discount rates and risk preferences…" The author takes the continuation of plea bargaining as a given, but proposes some "practicable" solutions such as "smoothly graded sentencing guidelines and better discovery" to bring plea bargains more into line with "desirable outcomes and with trial shadows." This article is reproduced with permission of the author and the Harvard Law Review. [Note: This is a pdf file; Adobe Acrobat required]

On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial
In this article, John H. Langbein looks at why the framers of the U.S. Constitution "so valued" jury trial, why the jury trial is no longer the centerpiece of America's justice system, and the many ways in which plea bargaining is wrong. "In the end, however, the worst aspect of plea bargaining is simply the dishonesty," he concludes. "Charge bargaining has made our criminal statistics into hash. The person who committed murder is pretended to have committed manslaughter; the person whose real crime was child molesting is convicted of loitering around a schoolyard. Not only has this willful mislabelling turned our criminal statistics into a pack of lies, it has also forced us into the widespread practice of preferring arrest records over conviction records for a host of purposes."

"Substance and Procedure: Alford and Nolo"
Stephanos Bibas looks at the academic debate over plea bargaining, how and why lawyers and clients use "no contest" pleas to avoid admitting guilt, and criticizes Alford and nolo contendere pleas from a moral, educational perspective. "Even if these pleas were perfectly accurate … they would undercut reform, moral education, and vindication of victims and the community's moral norms. Many guilty defendants are in denial and find it hard to admit their crimes to others or even to themselves."


Marsden Hearing (from VOCAL-Seattle)

Marsden Hearing

Public Defenders are over worked and under paid. Because of this some Public Defenders are slack on their job to the point of even refusing to contact their clients prior to trial.

In any case if you feel that your Public Defender is not working in your best interest because (s)he fails to visit or meet with you, or does not return your calls, you should request the court to appoint you another counsel.

It is an attorney’s duty, whether a public defender or privately employed by you, to be diligent in keeping contact with you. A common complaint is that they fail to communicate with the defendant prior to trial. Communication with your attorney is a must and you and your defense counsel should agree upon defense strategy. As with all cases the pretrial work begins with a meeting with you. Communication must remain open throughout the investigation phase as well as the trial phase of your case.

In most jurisdictions a "Marsden Hearing” is allowed. This hearing is to allow the court to hear the defendant's problems with their court appointed counsel giving the court cause to appoint new counsel. However you must show the court serious problems, such as lack of contact and/or communication. To seek a Marsden Hearing, write a letter to the judge, requesting to a meeting with him regarding your appointed counsel. Send a copy to both your counsel and the prosecutor sending all copies and the original (to the judge) via certified mail, remember to keep a copy for yourself. This letter should state all problems you are having with your attorney. Keep the letter concise, compact and truthful do not jeopardize your honor before the judge by stretching the truth.


 QUESTIONS EVERY DEFENDANT MUST ASK BEFORE SELECTING A COURT APPOINTED ATTORNEYThe Clients Ethical Right to Know DocumentThis signed questionnaire by the attorney will help the defendant make an informed decision on choosing the best attorney to represent him in court. Without a signed document the client has no idea of the quality of representation he will receive in court.Name of court appointed attorney.______________________________________ Firm________________________ Phone_________________________________ What law school did you graduate from? ________________________________ What year did you graduate? Month_________ Year 19_____ Did you graduate in the upper ten percent of your class? Yes___ No___ The upper half of the class? Yes___ No___ How many years have you practiced law? ____ How long as a court appointed attorney? Months___ Years___ How long have you been employed with your present firm? Months___ Years ___ How many criminal defendants have you represented as the attorney of record? ____ What percentage of these cases have you won? ___ Lost___ What percentage of your cases have you settled with a plea bargain? ____% Will you attempt to get me to take a plea-bargain? Yes___ No__ Will you lose your right to act as a court appointed attorney if you have too many cases that go to trial? Yes___ No___ Have any complaints been filed against you with the Oregon Bar Association? Yes___ No___ To protect my legal interests will you agree to request separate trials on individual charges placed against me, if this would be to my advantage? Yes___ No___ Will I have reasonable access to you to discuss my case? Yes___ No___ How much time will you give me to discuss my case with you? ____ How many estimated hours will you spend on my case. ____ hours May I call you at your office? Yes___ No___ Are you willing to describe in a written and signed statement what you will do to protect my civil and Constitutional Rights and the strategy you will use to defend me in court? Yes___ No___ As my court appointed attorney how much do you expect to be paid for your services? $______ How much an hour does this amount to? $_________ Will the state of Oregon pay your law firm to represent me in court? Yes___ No___ Will I then be billed by the state for your services when I am able to pay. Yes___ No___ Will you see to it that I do not appear before a judge or jury in prison garb and that I am appropriately attired during hearings or a trial? Yes___ No___ I believe that my client has a right to know and should be fully informed regarding my legal background and legal expertise to defend him. I agree to be completely familiar with my client’s case. I will fully inform my client regarding his legal options. I agree not to threaten, intimidate, use profanity, or verbally harass my client. I will not attempt to coerce him to do anything contrary to his best legal interests. I will not discuss his case with the district attorney, prosecutors, judges, other attorneys, or anyone else without my clients written permission. I affirm that I’m familiar with the US Constitution, the Oregon Constitution, and all federal, state, county, and city laws my client may be charged with violating. I affirm that I am competent and experienced in criminal law. I will be forthright, honest, and represent my client in a professional manner.

Attorney’s signature_________________________________Date_________


Whereas: By refusing to sign item 16 and answer the other questions the attorney may be attempting to hide his inability to represent his client in court in an ethical and competent manner. The attorney may also be attempting to shield himself from accountability if he loses the case in court. It is alleged that some attorneys appear in court to defend their client with little knowledge, preparation time, and interest invested in the client’s case. It’s further alleged some attorney’s main interest is to obtain a plea bargain with a quick turnover with little effort, for the fee they receive from the state. Therefore: The client has a right to know the background of his attorney and receive from him a written statement that he (the attorney) will defend his client in court to the best of his ability.


Definition of Due Process - (Someone tell the judges)

Definition of Due Process of Law
"The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., 125 So. 2, 7 (Fla. 1929).

"To dispense with notice before taking property is likened to obtaining judgement without the defendant having ever been summoned." Mayor of Baltimore vs. Scharf, 54 Md. 499, 519 (1880).

"An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. Kazubowski v. Kazubowski, 45 Ill.2d 405, 259, N.E.2d 282, 290." Black's Law Dictionary, 6th Edition, page 500.

"Due Process of law implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding upon justice. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgement is rendered." State v. Green, 232 S.W.2d 897, 903 (Mo. 1950).

"Phrase means that no person shall be deprived of life, liberty, property or of any right granted him by statute, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing, Pettit v. Penn., La.App., 180 So.2d 66, 69." Black's Law Dictionary, 6th Edition, page 500.

"Due Process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgement upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." Black's Law Dictionary, 6th Edition, page 500.

"Aside from all else, 'due process' means fundamental fairness and substantial justice. Vaughn v. State, 3 Tenn.Crim.App. 54, 456 S.W.2d 879, 883." Black's Law Dictionary, 6th Edition, page 500.

Due process is best defined in one word--fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.

Example: Ezra and Sharon married in New York and had a son, Darwin. They divorced and Sharon moved to California; Darwin stayed with Ezra. Darwin later moved to California to live with Sharon; Sharon sued Ezra for child support in California. Ezra claimed that because he didn't live in California and had never been to California it would be unfair (a denial of due process) for him to defend the child support lawsuit in California. The U.S. Supreme Court agreed, saying that Sharon should bring her child support request in New York. Kulko v. Superior Court, 436 U.S. 84 (1978).

From the U.S. Constitution

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV.

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

From the Georgia Constitution
Article 1. Bill of Rights
Section I. Rights of Persons
Paragraph I. Life, liberty, and property.
No person shall be deprived of life, liberty, or property except by due process of law.

Paragraph II. Protection to person and property; equal protection. Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.


The Public Defender Creed"I am a public defender. I am the guardian of the presumption of innocence, due process, and fair trial. To me is entrusted the preservation of those sacred principles. I will promulgate them with courtesy and respect but not with obsequiousness and not with fear for I am partisan; I am counsel for the defense. Let none who oppose me forget that with every fiber of my being I will fight for my clients. My clients are the indigent accused. They are the lonely, the friendless. There is no one to speak for them but me. My voice will be raised in their defense. I will resolve all doubt in their favor. This will be my credo; this and the Golden Rule. I will seek acclaim and approval only from my own conscience. And if upon my death there are a few lonely people who have benefited, my efforts will not have been in vain."

-- Jim Dougherty, Cook County, KY Public

Sounds good, doesn't it? Maybe now, they will get SERIOUS about it.


American Constitutional Rights
Education for Social Workers

isn't taught in government schools anymore. Why?

See New Cases filed or decided
for the latest new decisions against CPS

The Constitution and Child Protective Services
This test is used as a training tool to teach caseworkers about your rights
under the law and how to do their job, without violating your rights.


Ohio Child Welfare Training Program
Common Ground
ISSUE #26, February 2004 Feds Re-affirm Parents' Rights

The recent Walsh vs. Erie County Department of Job and Family Services ruling has brought to the forefront the issue of parents' rights. In that case, it was found that the agency had overstepped it's authority during an investigation, and that caseworkers had not been trained in parent's Fourth Amendment rights.

Furthermore, the Child Abuse Prevention and Treatment Act (CAPTA) of June 2003 re-affirms parents' rights.

What are these rights, and how do these rights impact child welfare work in Ohio? The following excerpts from a guidance paper written by Howard Davidson, Director of the American Bar Association Center on Children and the Law, speak to these issues.

Court calls neglect probe inappropriate
By Tim Whitmire
Associated Press
Last updated: July 17. 2003 9:17AM

RALEIGH - Cleveland County parents who blocked a child-neglect investigation at their home shouldn’t have been the subjects of a probe in the first place, the state Supreme Court ruled Wednesday.

The ruling came in the case of Jim and Mary Ann Stumbo of Kings Mountain, who were visited in September 1999 by county social workers. The Stumbos didn’t allow the workers to enter the home or interview their children.

Investigators had received a tip that the couple’s 2-year-old daughter was running naked through their yard. The girl apparently chased a kitten into the yard and was quickly returned to the house by an older brother.

James Mason, a Virginia lawyer who represented the Stumbos, said the Supreme Court opinion "really stand(s) to protect the rights of families. Under circumstances like this, the social workers shouldn’t even initiate the investigation."

Mr. Mason works for the Purcellville, Va.-based Home Schooling Legal Defense Association.

His group represented the Stumbos because they home-school their children and are members of the association.

Officials at the N.C. Department of Social Services cautioned that they need time to examine the decision. What is there to "examine"? It's more of their "god attitude".

But they said they do not believe it will prevent social workers from investigating abuse and neglect cases because DSS has improved its screening of abuse and neglect tips.

NOTE- This story has now disappeared from the Wilmington Star archives-
July 16, 2003
N.C. Supreme Court says social workers may not force interviews
Wilmington Star

Charges that two Cleveland County parents obstructed a child-neglect investigation by county social workers must be dropped because there was never any evidence Jim and Mary Ann Stumbo neglected their daughter, the state Supreme Court ruled Wednesday.

So what about RESTITUTION from the state for the years of grief and expense to the Stumbos?

Here's the actual decision-

FindLaw: State Resources: North Carolina: Primary Materials: North Carolina Court Opinions**FINAL**In the Matter of: JOANIE STUMBO, STEVEN STUMBO, SCOTT STUMBO, UNKNOWN STUMBO.
No. COA00-408 (Filed 15 May 2001)

Court spanks social workers
Judges: State agents violated Constitution in corporal-punishment probe
Posted: April 18, 2003 1:00 a.m. Eastern
By Ron Strom
© 2003 WorldNetDaily.com

Social workers who entered a private Christian school without a warrant and questioned a 10-year-old boy about corporal punishment violated the U.S. Constitution, a federal appeals court has ruled.

Ruling in favor of parents in Milwaukee, Wis., the 7th U.S. Circuit Court of Appeals said Wednesday the government employees – Carla Heck, John Wichman and supervisor Christine Hansen – in probing alleged child abuse at Greendale Baptist Academy, violated both the Fourth and 14th Amendments.

"This is a tremendous victory for parental rights," said Steve Crampton, chief counsel for the Center for Law & Policy, which represented the parents in the case – John and Jane Doe v. Carla Heck, et al.

Crampton told WND, "This decision puts a stake in the ground telling [social workers], 'The law applies to you, too.'"

4-16-03 Wisconsin 7th Circuit- Greendale Baptist Church and Academy vs Heck, Wichman, Hansen The Nazi behavior is over?

February 5, 2003
Homeschool Legal Defense Association
Need for a search warrant trips social workers
Ohio authorities not aware of Fourth Amendment protections
Walsh vs. Erie County Department of Job and Family Services, Case No.3:01CV7588

In a forceful opinion, US District Judge James G. Carr wrote: “Despite the Defendants’ exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door. There is...no social worker exception to the strictures of the Fourth Amendment. ...Any agency that expects to send its employees routinely into private homes has a fundamental obligation to ensure that those employees understand the constitutional limits on their authority.”

“The caseworkers in the Walsh case admitted they had never been taught anything about the Fourth Amendment or search warrants.

The court further ruled that the police did not have probable cause to detain, frisk, and threaten to arrest Walsh, since he was not breaking any law but merely asserting his “fundamental right to be left alone.”

Walsh vs. Erie County Department of Job and Family Services, Case No.3:01CV7588

The case- http://familyrights.us/bin/caselaw/Walsh_v_Erie_Cty_Complaint.pdf

The Decision- http://familyrights.us/bin/caselaw/Walsh_SJ_order.pdf

February 24, 2003
Arkansas Judge affirms homeschool family's right to be left alone on charges of *environmental neglect* based on breakfast dishes left on table, and cat sleeping on laundry basket.Arkansas Court Denies Social Workers' Attempt to Search Home

Oakland Tribune
By Donna Horowitz, Staff Writer

Wednesday, July 10, 2002

County pays mom $400,000 for boys' removal without warrant Deal could change how social workers treat casesU.S. 9th Circuit Court of Appeals

This case involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.

Related Caselaw in the AFRA BIN
"When the people no longer read or understand their Constitution, then they will live in a POLICE STATE" -Robert Wangrud.

Child protection agencies through out the country have been operating systematically uninformed of Civil and Constitutional Rights of the people their agency is mandated to assist. Tactics in their investigations are often problematic, utilization of said tactics that are interpreted as intrusive and full of fabrication.

Officers of the Court/Law are required to take an oath to uphold, support and defend the Constitution of the United States. Many Law Enforcement Officers admittedly have no real understanding of and have not read the Constitution since high school. We have reports of parents who inquired of their Rights being told by Policemen "Those are only on TV".

In comparison, Child Protection Personnel take no such oath.

Family Court Judges openly admit that they are not conducting a Court of Constitutional Judicial Due Process.

Those employed by Child Protection Service Agencies have the empowerment to protect the Nation’s greatest asset and are considered Officers of the Courts.

Individuals who have the empowerment to remove children from predominantly loving homes without consequence regarding choices made in the process should carry the highest level of professional integrity.

Historically this is only the case in very low percentage of the cases.

There is no Liberty to defend as long as the Child Abuse Industry is in Business
There is a Real Problem in the USAThis is a system apparently ignorant of the HIGHEST LAW IN THE LAND, making WAR against the American Family, committing Conspiracy Against Rights and Deprivation of Rights Under Color of Law, which are Capital Offenses.

The Amendments to the Constitution are not rights GIVEN to citizens by government. American citizens are SOVEREIGN. The Amendments are the ESSENTIAL RIGHTS specifically enumerated as unalienable, meaning they CANNOT be taken away.

There is no fiction of law which can convert the natural born (sovereign) citizen of this country into a subject, unless he/she gives themselves away as a slave (waiver of rights). It has to be knowing, willing, intentionally, with full disclosure.

And that is how the Child Abuse Industry operates, without the "full disclosure" part.

If people allow a CPS caseworker to come in their house and talk with them, they have WAIVED their Constitutional Rights and Miranda Rights and are "volunteering" for "services". This is an example of EVERYBODY being ignorant of the Constitution, including CPS case workers.

CPS caseworkers often propose SICKENING THREATS if the parents refuse to let them in or refuse to "cooperate", but the moment the caseworker does so, this is coercion and they are committing Conspiracy Against Rights and Deprivation of Rights Under Color of Law, which are Capital Offenses. This is why US District Judge James G. Carr wrote: “Despite the Defendants’ exaggerated view of their powers, the Fourth Amendment applies to them.."

The careless, casual destruction of an American Family is NOT a trivial matter.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.This means you CANNOT disparage a parent's choice of religion and use that in your creation of an abuse/neglect case.

It further means you CANNOT "gag order" a parent from seeking other parents, counselors, or advocates to network with

Nor can you demand parents to remove advertisements from newspapers, or posters, brochures or letters, or meet to strategize defenses or bring public attention to their cases. Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.This means you CANNOT barge into somebody's home without a SEARCH WARRANT which must ALREADY BE signed by a judge on PROBABLE CAUSE and somebody's OATH that there is a REALLY GOOD reason to invade this family.

This means that an anonymous "Hot Line" call is NOT "Probable Cause"

This means that you have to SPECIFY exactly what you are looking for.

This means that you CANNOT just go into somebody's house on a "fishing expedition" for the purpose of LOOKING for ANYTHING to use to create a case against the family.

This also means that CHILDREN have the same rights against YOU as their parents and are entitled to the same Constitutional protections AGAINST you searching and seizing THEIR PERSONS without "Probable Cause".

From the FBI Color of Law Civil Rights Violations page- An official would violate the color of law statute by fabricating evidence against or conducting a false arrest of an individual. That person's rights of due process and unreasonable seizure have been violated. In the case of deprivation of property, the official would violate the color of law statute by unlawfully obtaining or maintaining the property (kidnapping the child) of another. In that case, the official has overstepped or misapplied his authority.Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This means you had better give people their Miranda Rights before you ask a single question.

This means that you had better not THREATEN people to talk with you. You have no business threatening to TAKE THE KIDS if people refuse to SURRENDER their Constitutional Right NOT to talk with you.

This also means you had better NOT snatch the kids unless they really have been deliberately PHYSICALLY injured.

This means that KIDNAPPING THE CHILDREN from their parents and holding them hostage with their release CONTINGENT upon the parents "jumping through the hoops" of compelled "Parenting Classes", "counseling" with contractor "mental health clinicians" is DEPRIVING both the children and their parents of their lives, liberty, and property without "due process of law"

You cannot PRETEND that KIDNAPPING a child from their own home is "in their best interest". If a REAL CRIME has been committed, the perpetrator should be the one removed. Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.This means that you had better tell people what the allegation is and inform them of their Miranda Rights and has Counsel present before you ask a single question.

This means that the "Anonymous Tip" probably came from somebody USING YOU to destroy a person for reasons that have NOTHING to do with any child abuse. If the "tipster" doesn't have enough guts to make a REAL accusation in person, nothing they say is credible. The accused should NOT have to guess who made the accusation and what the "tipster's" true motive is.

This means that you CANNOT HIDE EXCULPATORY EVIDENCE in order to KNOWINGLY prosecute an innocent person.

This means that contrary to how it has been operating, the BURDEN OF PROOF is NOT on the accused to "prove a negative"- that NOTHING HAPPENED. And the "rubber stamp say-so" of the subjective OPINION of a mental health clinician is NOT EVIDENCE.

This means that "second hand hear-say" information is NOT evidence. Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.This means that YOU are NOT the Prosecution, Judge, Jury, and Executioner. Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.This means that YOU are NOT the Prosecution, Judge, Jury, and Executioner.

From the FBI Color of Law Civil Rights Violations page-The Fourteenth Amendment secures the right to due process and the Eighth Amendment also prohibits the use of cruel and unusual punishment. In an arrest or detention context, these rights would prohibit the use of force amounting to punishment (summary judgment). The idea being that a person accused of a crime is to be allowed the opportunity to have a trial and not be subjected to punishment without having been afforded the opportunity of the legal process.

What do you think the compelled parenting classes, psych evals and continuous meetings that conflict with jobs are- if they ARE NOT punishment and a summary judgment? And by the time YOU are done "piling charges" and Assassinating parent's characters, they can never get a job again.Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Which means that THE PEOPLE HAVE ALL THE RIGHTS. CPS workers have NONE Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Amendment XIV

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

From the FBI Color of Law Civil Rights Violations page-The Fourteenth Amendment secures the right to due process and the Eighth Amendment also prohibits the use of cruel and unusual punishment. In an arrest or detention context, these rights would prohibit the use of force amounting to punishment (summary judgment). The idea being that a person accused of a crime is to be allowed the opportunity to have a trial and not be subjected to punishment without having been afforded the opportunity of the legal process.

By Karin Huffer M.S., MFT
The book, Legal Abuse Syndrome written by Karin Huffer is the result of her experiences for over twenty years as a marriage and family counselor in private practice. What is unique about this book is that it addresses the victims of legal abuse from a psychological therapeutic perspective. Ms. Huffer found that many victims of the legal system suffer from Post Traumatic Stress Disorder. She identified this as Legal Abuse Syndrome, brought on by the abusive and protracted litigation, prevalent in our courts.

Oppression and abuse of power are injurious to the health of the victims. Domination by abusers of bureaucratic power threatens the very functionality of the public and private sections in our country.

AFRA's Social Workers respond
When child abuse investigations are conducted by people whose main goal is to dig up dirt on a family to assassinate their character and desire for every family to be in "therapy," you end up with a mess- this mess we have right now of incompetence and corruption.
- Leonard Henderson Oregon Family Rights

An investigation should be conducted solely on the basis of determining whether a CRIME has been committed or not. It's not about "feelings" or "opinions" or what might happen. If we are going try to prevent crimes that might happen before they happen, you end up with a smothering tyranny.

Today, there are two systems of law operating in America,

1) The Republic, which is the law of land.

2) Democracy or colorable law, which looks/acts like law.The Republic:

Article 4, Sec. 4 of the Constitution states "the United States shall guarantee to every state in this union a Republican form of government, and shall protect each of them against invasion and against domestic violence." etc. As early as 1782, Jefferson said that it was ridiculous to suppose that a man should surrender himself to the state, this would be slavery.

That’s why the Republic, with its checks/balances, provided for authority through the election by the people of public officials best fitted to represent them. The attitude towards property respects the laws and individuals’ rights through sensible economic procedure that does not create irresponsible debt and prevents foreign domination.Democracy

The 1928 US Government Training Manual, No.2000-25, War Department Chief of Staff states: "A government of the masses. Authority derived through mass meeting or any form of direct expression, results in mobocracy. Attitude toward property is communistic negating property rights. Attitude toward law is that the will of the majority shall regulate, whether it be based upon deliberation or governed by passion, prejudice, impulse, without restraint or regard to consequences. Results in demagogism, license, agitation, discontent, anarchy."

Also, a democracy has no system of Constitutional natural rights to protect the individual from the absolute will of any voting majority, which is a small segment of the population, and they regulate laws which, without limiting laws, creates endless colorable rules and regulations in an effort to please everyone until the system is under complete government control. A democracy may grant civil rights, but in a Republic, you automatically have natural civil rights.:


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