Editor's note:听This story is part of 'Broken Defense,' an investigative series from Lee Enterprises. More details about this project can be found at the bottom of this article.听
Quentin Navarro sits in a Wharton County Texas courtroom in early November, tapping his foot and bouncing his knee intermittently.
The hum of conversation fills the room as court staff call about 40 people accused of misdemeanors appearing in court for the first time. Navarro waits more than two hours to talk to the prosecutor alone without an attorney.
鈥淚鈥檓 anxious,鈥� he says. 鈥淵ou鈥檙e walking in there to talk to the district attorney blind.鈥�
People in Texas, North Dakota, Arizona and likely Oklahoma routinely get no public defender in misdemeanor cases, especially at initial appearances, a Lee Enterprises investigation found. Some people plead guilty at their first hearing to get out of jail. Others who might have fought a misdemeanor charge plead guilty to end the ordeal. These practices threaten the Sixth Amendment right to counsel.
Defendants have a constitutional right to an effective attorney whenever they could face jail time, starting at their first court hearing. Though people who are found guilty of misdemeanors often get sentenced to community service, probation or fines, jail is still a possibility in most misdemeanor cases.
Yet more than 136,000 misdemeanor cases have been closed without attorneys each year since 2019 across the West, according to data from Colorado, North Dakota, South Dakota, Utah and Texas. Most other western states could not report how many misdemeanor defendants go unrepresented due to data collection challenges.
"America鈥檚 dirty little secret is that thousands of people go to jail without ever talking to a lawyer," said Jon Mosher, deputy director.
Defendants in up to nearly 60,000 of North Dakota鈥檚 misdemeanor cases had no appointed attorney from 2019 to 2021, according to the State of North Dakota Courts. Court records showed 12% of all misdemeanors those years had no attorney and 42% were marked "unknown."
North Dakota Supreme Court analyst Jeff Stillwell said "it's a fairly safe assumption" that most 鈥渦nknowns鈥� did not have counsel, but the clerk didn't mark them.
An estimated 276,000 Texas county misdemeanor cases from 2019 to 2021 showed no attorney, according to Texas Office of Court Administration data.
Joel Lieurance, senior policy analyst, said data can contain some errors because local clerks might not record consistently, though record-keeping has improved as state court staff have trained the clerks. Individual county data can be unreliable, he said, but statewide it is a good estimate of how many people go unrepresented.
Nearly 50,000 Colorado cases listed no attorney in the last nearly four years, according to Colorado Judicial Branch data.
Almost 14,000 cases in South Dakota where defendants faced up to one year in prison from 2019 to mid-2022 had no attorney listed, according to the South Dakota Unified Judicial System.
More than 33,000 Utah cases from 2019 to 2022 had no attorney, according to Utah State Courts data. Defendants who had a lawyer at any point, including those who ultimately represented themselves, were excluded.
Hundreds in Oregon wait for attorneys daily, but most in state court get lawyers eventually. Attorneys were appointed in 99% of state court misdemeanor cases that were resolved in 2020 and 2021, according to the Oregon Judicial Department. Missing from the data are local justice and city court cases, meaning more people likely had no representation. Only North Dakota, South Dakota and Texas collect that city-level data.
Arizona, California, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, Oklahoma, Washington and Wyoming courts could not provide data on how many misdemeanor defendants were unrepresented. Most court staff said the data analysis requires too much time or the tracking systems can鈥檛 report it, while California and Arizona don鈥檛 track at all.
鈥淲ithout that information,听the state largely cannot ensure that every person who is owed a right to counsel 鈥� because they face potential loss of liberty in a criminal case 鈥� actually gets that lawyer or has waived it effectively,鈥� Mosher said. 鈥淭hat's a problem that you鈥檙e not able to get that information.鈥�
The Fourteenth Amendment obliges states to ensure the Sixth Amendment right to effective counsel. Lacking data suggests states fail constitutional responsibilities because they don't know who is unrepresented 鈥� an 鈥渁bsence of government oversight over a core constitutional right,鈥� Mosher said.
"Our governments don鈥檛 know what鈥檚 happening in our criminal courts if they can鈥檛 tell us who has lawyers and who doesn鈥檛," Mosher said.
鈥楴ot guilty鈥�
Navarro pleaded innocent that day in Texas when he went into a room and talked to a Wharton County prosecutor. His case was delayed.
More than a dozen others waived their constitutional right to a public defender and pleaded guilty to misdemeanors after talking to Assistant District Attorney Mark Racer. Four of them came to court from jail, and their guilty pleas secured their release.
Anyone can waive the right to an attorney and choose to represent themselves, but that waiver must be made intelligently and voluntarily. Defendants who plead guilty because they want to leave jail might not be waiving their rights voluntarily, Mosher said.
鈥淧lacing poor defendants in a position where they must weigh their liberty interest against exercising their constitutional right to counsel is a form of coercion that leaves them with no meaningful choice at all,鈥� Mosher said.
A 27-year-old man in an orange jumpsuit printed with "Wharton County Jail" in big black letters across the shoulders approached Wharton County Judge Phillip Spenrath.
He was in jail nine days for allegedly possessing less than two ounces of marijuana. The man has dealt with homelessness for five years, according to jail records. Lee Enterprises is not identifying him because attention to a minor criminal charge could prevent his potential employment.
The man was told he could delay his case to either apply for a public defender or hire a private attorney. Like Navarro, he waived his right to an attorney and talked with prosecutor Racer alone about a potential plea deal.
鈥淎re you pleading guilty or not guilty to the charge of possession of marijuana?鈥� Judge Spenrath asked the 27-year-old.
鈥淣ot guilty,鈥� the man replied.
鈥淥kay, then we鈥檙e not going to be able to do this,鈥� Spenrath said.
The man then said he鈥檒l plead guilty instead, since he鈥檚 "here" in court, in person. Spenrath paused and called up Racer.
鈥淭his young man may be a little confused,鈥� he told the prosecutor.
Racer reminded the inmate of their deal: 鈥淕uilty, but you get out of jail.鈥�
Spenrath confirmed whether the defendant wanted to continue, then resumed.
This time, the man pleaded guilty.
"You owe no money and no jail time, and you get out today," Spenrath said.
He wasn鈥檛 told about another way to get out of jail that doesn't require cash.
Racer didn鈥檛 offer the 27-year-old a personal recognizance bond, a signed promise to return to court.
The man was being held in jail on a $2,500 surety bond, so he likely would have had to pay a bail bondsman $250 to get out. A public defender could have argued for a lower bail or a recognizance bond.
Navarro watched the 27-year-old, shackled at his wrists and ankles, switch his plea.
鈥淭he fact that they dangled jail in front of him,鈥� he said. 鈥淗e just wants to go home. Poor kid. The majority of people just plead guilty to get out of here.鈥�
Navarro said the criminal justice system is "systematically against minorities." About two-thirds of defendants in court had Black or brown skin.
No process
Similar quick pleas were heard in North Dakota. A man and a woman pleaded guilty in Burleigh County court to driving with suspended licenses. They didn't have defense attorneys and were sentenced in October to 10 days of electronic monitoring.
Two jailed men appeared in Grand Forks County court with no public defenders. If the men plead guilty, they can leave jail that day.
鈥淚 don鈥檛 know what鈥檚 going to happen tonight if I don鈥檛 show up (for work) and login,鈥� one of the men said.
They pleaded guilty to misdemeanors听and were sentenced to community service.
Like in Texas, the judge and prosecutor did not mention a personal recognizance bond.
鈥淎 good chunk of people end up pleading guilty having never talked to a lawyer,鈥� North Dakota defense attorney Mark Friese said.
Jessica Ahrendt, a Grand Forks County Public Defender Office attorney, said the county does not have a process in place for people to get attorneys at or before their first appearance 鈥� despite a constitutional right to counsel at that hearing.
Ahrendt says the current over-capacity staff would be unable to represent everyone at initial appearances, whether a process existed.
No one should walk into court and give up rights without the advice of counsel, said Timothy Laughlin, executive director of Oklahoma Indigent Defense System. But it happens in Oklahoma, too.
鈥淚 know it鈥檚 happening,鈥� Laughlin said. 鈥淭here鈥檚 no way we鈥檙e getting appointed to all the misdemeanor defendants who can鈥檛 afford counsel.鈥�
鈥楾hat鈥檚 unconstitutional鈥�
It鈥檚 common in short-staffed Arizona for people accused of misdemeanors to go without attorneys.
Two of the state鈥檚 15 counties听have a public defender present for misdemeanor initial appearances, said Jared Keenan, Arizona鈥檚 ACLU legal director. Many don鈥檛 get attorneys throughout their cases.
In most counties, a public defender isn鈥檛 appointed to a person arrested for a misdemeanor unless the county attorney鈥檚 office intends to pursue jail time. Constitutionally, those people still have a right to an attorney because 鈥渆very misdemeanor has the potential of jail time in Arizona,鈥� Keenan said.
Tiera Rainey, executive director of the Tucson Second Chance Community Bail Fund, said her group often sees people take plea deals on crimes they did not commit just to get out of jail.
A person booked for a misdemeanor often can鈥檛 afford bail, so they serve jail time whether or not the county attorney鈥檚 office intends to pursue that sentence, Keenan said.
鈥淚f they鈥檙e in jail because they can鈥檛 afford to pay bond but (the judge) doesn鈥檛 sentence them, they still have technically been sentenced to jail without an attorney,鈥� Keenan said. 鈥淭hat鈥檚 unconstitutional.鈥�
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'Get it over with'
Those who avoid jail might end up there later if they don鈥檛 complete probation or community service and get re-arrested. Then, they can鈥檛 challenge the original charge to which they pleaded guilty.
Justin, 30, pleaded guilty to a San Jacinto County Texas misdemeanor assault charge Nov. 1, though he said it was 鈥渂ogus鈥� because he was defending himself. Justin asked to be identified by his first name only so his employment isn鈥檛 affected.
Justin represented himself and was happy with how the judge and prosecutor treated him.
鈥淚 didn鈥檛 know they were going to听be as lenient as they were,鈥� he said. 鈥淚鈥檓 getting the chance to get it done faster and also the chance to get it off my record.鈥�
But he could get arrested again if he makes听a mistake while following the judge's orders. He could lose his chance to wipe the charge from his record and can no longer fight his assault charge.
One man back in Wharton County, who did not give his name, said he took a plea deal on a marijuana possession charge "just to get it over and done with, and be free."
Related
Judges or elected officials in many counties nationwide have full oversight over public defense, a structure that can pressure public defenders to avoid making motions that may agitate a judge.听
Without talking with a public听defender, Ahrendt said people听may not know they can ask for deferred prosecution, community service, a payment plan for fees and arrangements to accommodate jobs. They might never discover a defense that could get their case dismissed.
鈥淪ome people just don鈥檛 know听what they鈥檙e doing, and then it鈥檚 too late to undo it,鈥� Ahrendt said.
Though, Ahrendt said, some people 鈥渘eed that quick out.鈥� Resolving their case in a few days might be needed to keep a job or housing.
Often people do not understand of pleading guilty, Friese said. Even a misdemeanor criminal conviction can prevent travel to Canada and impact employment, housing, military enlistment, law enforcement jobs and professional licenses. Many defendants don鈥檛 know they lose gun rights for a misdemeanor domestic violence conviction.
鈥淭he truth is that the bad effects of a plea of guilty and a criminal conviction aren鈥檛 born out at the time that they鈥檙e ordered to do community service or even a few days in jail,鈥� Friese said. 鈥淚t鈥檚 lifelong implications of having a criminal record.鈥�
'Can't听afford it'
Navarro hopes the court dismisses his case, which was ongoing as of early January.
Navarro was charged with misdemeanor domestic assault when an incident with his girlfriend and her 16-year-old son resulted in broken apartment windows and Navarro called the police, he said. All three were charged. Navarro said he鈥檚 innocent and thinks the prosecutor has no case against him.
He said he "absolutely" would have wanted to discuss his case with a public defender before or during his 15-minute chat with the prosecutor.
Judge Spenrath said 鈥渨e can鈥檛 afford鈥� a public defender at initial appearances. He said he makes sure people understand the charge to which they plead.
鈥淚 don鈥檛 want anyone pleading guilty to something they don鈥檛 want,鈥� Spenrath said.
Wharton County has no full-time public defenders, Spenrath said. Judges assign private attorneys to people who cannot afford one. The county pays most of that cost, and defendants pay a portion later.
Navarro said he can鈥檛 afford a private attorney on his truck driver wages and thinks hiring a public defender wastes time and money.
"We鈥檙e poor people," he said.
About Broken Defense: Across the West, public defense systems face crushing caseloads, historic underfunding, structural problems and severe staffing shortages, imperiling criminal defendants’ lives and in many cases denying them their constitutional right to counsel. Defendants have lost jobs and homes, been pressured to plead guilty and been denied the benefit of exonerating evidence. People accused in more than 100,000 misdemeanors each year go to jail without ever talking to a lawyer.
Lee Enterprises’ West region Public Service Journalism team and local reporters attended more than a dozen court hearings and interviewed more than 25 defendants, 40 attorneys and 25 experts to reveal public defense in many western states is broken.
Lee Enterprises Public Service Journalism Reporter Emily Hamer may be reached at [email protected].