An injustice?

Defendants should have attorney at bail hearings

“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 defense.” — The Sixth Amendment,

U.S. Constitution

For the law-abiding folks among us here in Northwest Arkansas, it can sometimes be hard to imagine how unsettling and confusing an arrest can be.

Count your blessings.

From the outside looking in, it’s easy — and likely — for people to just assume the folks in trouble with the law did something to deserve it. Undoubtedly, that’s often true. But the U.S. judicial system is built to assume it very well may be untrue. Although the term “innocent until proven guilty” isn’t in the Constitution, the rights outlined in that document articulate just such an American value.

Rights for criminal defendants are often viewed in terms of “technicalities” that help guilty people escape accountability. The average American, on a holiday such as this week’s Independence Day, may celebrate such vaunted constitutional rights of, say, the First Amendment’s protections of free speech or religious expression, or the Second Amendment’s right to bear arms.

But what about the other protections in the first 10 amendments to the U.S. Constitution? Starting with the Fourth Amendment, the Bill of Rights ticks off several limitations designed to protect Americans from intrusive and authoritarian behaviors of a powerful government. The Founding Fathers had seen enough abuses of justice through the courts in the hands of the British king.

Indeed, most of the Bill of Rights seeks to ensure Americans do not suffer the harms of overzealous prosecutors and corrupt courts. There’s a prohibition against unreasonable searches and seizures (Fourth Amendment); protection against double jeopardy, having property taken without just compensation, self-incrimination or being imprisoned without due process of law (Fifth Amendment); a right to a speedy trial by an impartial jury and to be informed of the criminal charges one faces, along with a right to face one’s accuser (Sixth Amendment); and prohibition of excessive bail or cruel and unusual punishment (Eighth Amendment). These are far beyond technicalities.

Defense attorneys aren’t always held in high regard because of mistaken notion that their goal is to let guilty people go free. We suspect the nation’s founders might have a different perspective, one that suggests defense attorneys are indispensable to American justice. If the civil liberties of Americans were guarded by a wall, as in a fortress, one could say defense attorneys stand in the gap to fend off incursions against liberty that, if allowed, could bring the whole of it crumbling down.

It should be noted that no defense attorney has ever let a criminal defendant escape justice. Only a judge can make that happen, when the judge agrees that the actions of law enforcement and/or prosecutors fails to withstand constitutional scrutiny.

When criminal defense attorneys successfully fend off unconstitutional behaviors by law enforcement or prosecutors or even within the courts, they are upholding the protections guaranteed to all Americans in that miraculous document that established our nation’s system of governance.

Doug Norwood is a defense attorney based in Benton County and more than once he’s been — oh, how shall we put it — an irritant to prosecutors and law enforcement. And now he’s doing it again.

On behalf of two criminal defendants, Norwood’s firm recently filed a federal lawsuit, seeking class-action status, asserting that criminal defendants in Benton County should have a lawyer to represent them at bail hearings before a judge.

Those charged with crimes that require a bond appearance in Benton County do not routinely get legal representation when they go before a district judge for their first court appearance after arrest. People who can afford their own lawyers have been known to be represented by an attorney at a bail hearing, but not those likely to rely on public defenders or who have not yet had the opportunity to obtain private legal counsel.

Failure to provide legal counsel for poor defendants who cannot afford to hire private attorneys in the earliest stages of their criminal case is a violation of their constitutional rights, the lawsuit claims. In the words of the Constitution, the approach does not meet the standards of due process.

Why does it matter? After all, no defendant is going to be found guilty or innocent in a first appearance, right? No evidence will be laid out to determine whether they’re going to prison.

We’re not lawyers, but it seems a fairly basic principle that a person charged with a crime should receive legal counsel as early in the process as possible. It happens for bail hearings in other counties and, in all candor, we were surprised to learn it wasn’t happening in Benton County.

Readers of this page may recall a number of times we’ve editorialized in support of law enforcement officers and the work they and prosecutors put into keeping our communities safe. Indeed, our communities rely heavily on their work. It should be said that in many cases, the investigative work in criminal cases obtains convictions in the face of strong defenses, a testament to the skill and dedication of officers, detectives and prosecutors.

Criminal cases are titled “John Doe vs. the State of Arkansas” for a reason. That means the sizable resources of the state government are employed to obtain a conviction. Criminal defendants — all of whom have a right to being innocent until proven guilty within constitutional parameters — deserve legal counsel at the earliest possible moment once charged with a crime. Defense attorneys can undoubtedly make a stronger argument for lower bonds and then the judge can decide with all the relevant information in hand.

Why isn’t it happening in Benton County? We don’t know the legal justification yet, but it seems it’s going to have to be a really, really good explanation as to why defendants shouldn’t have legal counsel at the time a bond is set. The prosecutor gets to have input on the question before a judge sets bail. We suspect a federal judge might wonder why the defendant isn’t entitled to having an attorney involved on his behalf, too.

At the least, Norwood’s firm is asking a very good question.