As he should !
Posted on 05/28/2002 5:04:16 PM PDT by marshmallow
TAMPA -- The 16-year-old boy sat before the Hillsborough County judge, asking for an attorney. He didn't understand what was going on, he kept saying.
Juan Carlos Elias was in the middle of a restitution hearing. He had pleaded guilty to stealing one car and burglarizing another. Reimbursing the victim was the issue at hand now.
But Elias said he didn't know what restitution meant. His frustrated mother repeatedly rose from the first row, instructing her son in Spanish.
Judge Richard Nielsen, relatively new to the bench, had her tossed out of his courtroom.
"You don't have a lawyer, Mr. Elias," Nielsen said. "So you're going to represent yourself in this matter."
And so, for more than two hours on May 6, the 16-year-old struggled to deal with the arcane language and procedures of a courtroom. It was a scene unfamiliar to some observers. Under Florida law, juveniles are entitled to legal counsel unless they and their parents waive that right.
"Mr. Elias, any objection to these exhibits?" Nielsen asked at one point, referring to car repair bills submitted as evidence.
"I don't have nobody representing me?" said Elias. "I don't understand these things."
"Show these to Mr. Elias," Nielsen instructed the prosecutor.
Soon after, Nielsen asked Elias whether he had trouble understanding English.
"No, but sometimes the words you all use, like, um, I don't really get 'em that much. But I understand English," said Elias, whose family is Puerto Rican.
Restitution hearings are routine and are rarely covered by the press. A reporter for the St. Petersburg Times chanced upon Elias' hearing. His mother later gave a tape recording of the proceeding to the reporter.
Nielsen did not return repeated calls from the Times. Nor did officials at the Hillsborough County Public Defender's Office.
Pinellas-Pasco Public Defender Bob Dillinger said he has never seen a juvenile represent himself during such a hearing.
"That would really bother me," he said, when told that Elias had asked for a lawyer and had said he didn't understand the proceedings. "I would be surprised if our judges (in the Pinellas-Pasco circuit) wouldn't give him a lawyer."
Nielsen, 52, built his reputation in civil litigation with an emphasis on business law. He was head of the litigation department at a Tampa firm, Salem, Saxon & Nielsen, when Gov. Jeb Bush appointed him to the bench in November 2000.
Nielsen graduated from the University of New Mexico and got a law degree from the University of Florida. He had no judicial experience before his appointment. In his application for nomination to the circuit court, Nielsen wrote that certain traits would serve him well on the bench, including honesty, integrity and fairness.
Elias' mother, Evangeline Castillo, had hired a private attorney to hammer out a plea agreement weeks earlier. But she could not afford to retain the lawyer, Tina Dampf, any longer.
She figured her son would be assigned to a public defender for the restitution hearing.
"Mr. Elias, do you have a lawyer representing you in this matter?" Nielsen asked the youth at the beginning of the hearing. He said he did not.
"So, Ms. Dampf is no longer representing you in this matter, is that correct?" Nielsen asked.
Yes, Elias said.
"All right, well we're going to proceed . . . at this time," Nielsen said.
Elias, lanky and wearing a shirt that showed off his abdomen, said nothing. Nearby was a co-defendant represented by Public Defender Elizabeth Beardsley.
At one point during the proceedings, Elias asked whether the prosecutor was representing him.
"No, sir, she's not . . . she is handling that case on behalf of the state," Nielsen said.
"On my behalf?" Elias asked.
"Not on your behalf. Against you, sir. Now, in a moment, you'll get an opportunity to ask questions of the witness."
"I don't know what to say," Elias said.
His mother spoke up. "You want me to say it for you?" she asked her son in English.
"No, if you're going to do anything, you need to tell him what to say," Nielsen told her. "You're not the attorney."
Several attorneys sounded perplexed when told of Elias' travails. George Richards, deputy chief of the juvenile division at the Hillsborough State Attorney's Office, said indigent youths are appointed an attorney unless they specifically decline one.
"A judge has to find that it's a knowing waiver," Richards said. "If the child understands, the parent understands that they're waiving their right, and they say, "No, we don't want an attorney,' then (an attorney) won't be appointed."
Judy Estren, executive assistant public defender at the Pinellas-Pasco Public Defender's Office, said the co-defendant's attorney should have intervened. "I would have instructed my attorney to jump in."
Castillo, 36, was a janitor at the Hillsborough courthouse for years until she was injured a few years ago. She got to the courthouse an hour before the hearing May 6, she said, to line up a public defender. Castillo said a bailiff she knew told her not to worry, that the judge would handle everything.
Nielsen ordered restitution of $4,608.94. Elias, who has dropped out of school, is on probation. He is doing his court-ordered public service at a youth center, Castillo said.
On Monday, Elias said he was still reeling from his day in court.
"They were acting like I was a lawyer and I know how to speak," he said.
"I'm like, dang. The way they speak and the way they put their words, I don't understand
No one is absolved of anything. I suspect this gets solved easily, worst case retry the penalty phase, at the taxpayers expense, as happens when public servants let us down. Hopefully, the judge learned a lesson.
Do you the Constitution should be respected only selectively? How do you determine when?
You’ll find that activist approach all over DU.
Blind justice, deaf ears.
Of course the judges actions are more important than this kids movies. What do the kids movies have to do with anything? Maybe if the kid really liked action-adventure movies with lots of violence an stuff that might mean something, I just dunno.
Unfortunately for all of us, the litigious society we live in tends to be the antithesis of common sense. I would hope that a wise lawyer would only require a fleeting glance at this debacle to convince him/herself that defense of the Constitution is not required in this instance; to turn the other cheek as it were. Leave defense of the Constitution in this instance to the Hucksters and Charlatans of the Bar Association . . .
How do I personally determine when? Sandlot rules; No Harm, No Foul. . .
What do you actually know about this proceeding? In Florida, a restitution hearing may be an equivalent to a sentencing "hearing" in other states, where the "hearing" is nothing other than the judge sentencing the guilty party.
This case was already decided....WITH an attorney.
Furthermore this was a juvenile case sentencing.
I’ll stay my opinion of the judge because I don’t know Florida law.
I agree completely, and I hope it turns out that way. Whether a "wise lawyer" or a harried pd, thats the advice he'll get, which is why they needed to get him one in the first place.
Don't need to be a FL Bar member to comment on FR. We could ping some, but why make a federal case of it.
The article makes it clear that he wanted an attorney, didn't understand the proceedings, but also notes
Pinellas-Pasco Public Defender Bob Dillinger (FL bar I'm sure) said he has never seen a juvenile represent himself during such a hearing
George Richards (FL bar), deputy chief of the juvenile division at the Hillsborough State Attorney's Office, said indigent youths are appointed an attorney unless they specifically decline one
Judy Estren (FL Bar), executive assistant public defender at the Pinellas-Pasco Public Defender's Office, said the co-defendant's attorney should have intervened. "I would have instructed my attorney to jump in."
The judge screwed up. Glad it was a little error.
Ae you suggesting you have a Constitutional right to counsel in a civil proceeding? Do you contend this kid was entitled to the services of a taxpayer-paid public defender in connection with a civil restitution matter in which he stood no risk of incarceration?
These are terms appropriate to a criminal proceeding. You do understand that, don't you? There is a whole bundle of Supreme Court decisions that imposes these requirements on the criminal courts. Did you know that?
Now suppose the state initiates a civil restitution proceeding to recoup the costs of the damages on behalf of the victim. The criminal complains he can't understand the proceedings and ought to have his court-appointed attorney (at a cost of $10,000) to help him out.
Now suppose the criminal suffered personal injuries of his own when he slipped on a banana peel left lying on his victim's sidewalk. The neighbor is a man of modest means and cannot afford to retain an attorney. All he owns is his home but that's sufficient to entice a bottom-feeder lawyer to represent the criminal on a 40 percent contingency fee arrangement based on the assumed value of the home. The criminal sues the victim. The victim complains he can't understand the proceedings and asks for a court-appointed attorney (at a taxpayer cost of $10,000) to represent him.
Which, if either, of these two men has a Constitutional right to an attorney? Why?
Whta you are proposing is that special privileges be provided at taxpayer expense to a criminal that a law-abiding citizen cannot get. How is that fair and just?
Public Defender i.e. not a credible source of impartial opinion. Might as well ask a debtors' attorney about impartial Bankruptcy "fairness".
George Richards (FL bar), deputy chief of the juvenile division at the Hillsborough State Attorney's Office, said indigent youths are appointed an attorney unless they specifically decline one
At a trial yes, but at a reading of a sentence? - again, the article never states if a defendant is entitled to an attorney at this type of hearing. There are legal proceedings where sentencing can be handed down after a trial, without a court proceeding. If you don't have an attorney present in your house when you receive a sentence mailed to you can you appeal based on lack of representation? Even if you were represented in the trial?
Sentencing is often a formality. Frequently, the sentence is written by the judge in his or her chambers. The "hearing" where it is presented is not a "hearing" per se...it's just when the sentence is formally entered into the record and the defendant often has no right to say anything at that "hearing". Was this the case here? Was Richards statement being taken out of context?
There's a ton of questions this article never raises or answers or puts in their proper legal perspective.
Judy Estren (FL Bar), executive assistant public defender at the Pinellas-Pasco Public Defender's Office, said the co-defendant's attorney should have intervened. "I would have instructed my attorney to jump in."
Another "not credible" source....well, maybe credible but, hardly impartial.
These are all just questions that are popping into my mind because I was the legal assistant to the Head Counsel of Seafirst Bank for 5 years.
This article is sloppy as hell.
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