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
Eeesh. Do I have to explain how everyone is supposed to read the Constitution these days?
Take the 2nd Amendment. We are to read it as a "living, breathing document." That means we are to assume the part that says "a well regulated militia" means that "the people" referred to in the amendment are actually the people in the government, and so only government can have guns. Therefore, in the Bill of Rights, which was previously thought to enumerate the rights of the people, the 2nd Amendment actually enumerates the right of the government.
Now you catching on? In reading the Constitution as a "living breathing document" subject to interpretation of the day, we can look at the 6th Amendment this way:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial [if of course he dresses nice, showing proper respect to the judge, but that goes without saying], 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 [again, only if he dresses nice and shows the judge and the court proper respect. If he doesn't, tough toenails for him].
See hoe simple it is? You take what is written and impose what you think should be there! That's what it means to have a Constitution that is a "living, breathing document"!
I don't suppose it occurred to him to think, "I'm like, dang. If I had stayed in school and paid attention I'd understand"
I used to work as a probation investigator, so I spent a lot of time in court. It never ceased to amaze me how ignorant of judicial system most people are.
BTW, before being too hard on this judge, it was fairly clear to me that this was a hit piece on a Jeb Bush appointment, and, as such, I'm sure there is more to this than the reporter chose to tell us.
Just one observation: Notice how high school kids act when the dress up to go to the prom. Somehow, the formal attire changes their attitude and behavior. I'm sure that's just a coincidence, and that you'll be happy to give me specific examples of how I'm wrong. But, I'll stand by it.
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.In other words, you knew you wouldn't have a lawyer for this hearing, since you knew you couldn't afford the lawyer you had before. And, since you knew this, and you didn't make alternative arrangements (i.e., asking for a public defender), then the court can only interpret that you don't want a lawyer.
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.
In addition, the judge asked the defendant if he had a lawyer. It is not the judge's place to advise of Miranda rights; that responsibility belongs to the arresting officer. Defendant had a lawyer, and gave her up - the reason is immaterial - it's the defendant's responsibility to replace said lawyer, and that includes asking for assistance from the court when necessary. If you don't, then that's on you.
Word of advice to the mother - never have a battle of wits with an unarmed opponent; you are obviously unarmed...
Now what do you propose--that the state pay $10,000 to represent the kid in a $4,000 restitution hearing? If not, do you suggest he just be left off? Thousands of citizens are sued everyday for things for which they cannot afford to hire lawyer. Should the state hire lawyers for them on the public dime?
Maybe these hearings sought to be more informal, but then you'd be complaining that due process requires a certain formality.
Crimes have consequences--costly consequences. Is it or is it not fair to visit those costs back on the offender?
I bet the kid dressed properly for his criminal trial.
On a seperate note, if the boy AND his mother didn't have enough sense to dress him properly when going before a judge then they should expect that they will not receive the best of reviews.
Didn't even have to be a suit. A decent pair of jeans and a collared shirt would be enough.
Wrong. This was a post-conviction hearing, but still in criminal court. It was to determine the amount of restitution paid by the defendant for the victims of his criminal acts.
1. Mom had hired a private attorney, but couldn't afford to pay him. Although he is the attorney of record, the attorney didn't show at the hearing (he's supposed to as long as he's the attorney of record until the judge releases him from the obligation).
2. Juveniles are required to be represented by counsel under Florida law. The judge cannot be the one who waives the juvie's right to representation. Only the juvie AND his parent(s) can waive that right, and only after the judge conducts a hearing within a hearing to see if the juvie is competent to be his own attorney and has made a knowing waiver (this is also the case in an adult proceeding, except the waiver is only made by the adult) of his right to counsel. The judge didn't do that in this case.
3. A restitution hearing is part of the criminal proceeding against the defendant. It is not a civil hearing. Because this defendant is on probation, the repayment of restitution is made a condition of probation. The juvie (or adult) who fails to pay or fails to make his regularly scheduled payments can and will have his probation revoked and the defendant sent to jail.
Yeah. Don't show up with a copy of the Constitution either. They really hate that.
Wrong. It is the judge's obligation and duty under law to inquire as to why 1) the kid's lawyer of record didn't show up 2) ask if the kid wanted legal counsel. 3) provide referral to the public defender's office if the kid said yes.
In addition, the judge asked the defendant if he had a lawyer. It is not the judge's place to advise of Miranda rights; that responsibility belongs to the arresting officer. Defendant had a lawyer, and gave her up - the reason is immaterial - it's the defendant's responsibility to replace said lawyer, and that includes asking for assistance from the court when necessary. If you don't, then that's on you.
Wrong again. The judge is under a legal obligation and duty to comply with the law and uphold the Constitution. His legal obligation included 1) inquiring as to the reasons the kid didn't have counsel, and inquire as to why the attorney of record didn't show up at the hearing 2) refer the kid to the public defender's office if he could not afford it 3) find out if the kid wanted to represent himself 4) if the kid wanted to represent himself, to find out if the kid was competent to represent himself and he and his parent made a knowing waiver of counsel. None of these things were done by the judge.
The responsibility is not on the defendant to do these things. It is the responsibility of the Judge.
Word of advice to the mother - never have a battle of wits with an unarmed opponent; you are obviously unarmed...
Too easy....I'll just pass on this one. It might be seen as a personal attack.
Where I come from, a prosecutor and a judge agreed to let me plead to the lesser offense of "Blocking the Roadway" rather than "Speeding," an offense which would have added "points" to my driver's license. I literally had to stand before the court swearing that on such-and-such a date, at such-and-such a time, I did willfully and knowingly block some portion of some roadway somewhere. Ironically, the fine was twice the speeding fine. A few months later, the judge was convicted of embezzling from a legal client. He lost the judgeship but for some reason was allowed to keep his $80,000 per year job as an administrator for the school board.
Justice ain't blind, but it can be pretty stupid sometimes.
Really!? I hope she is being posecuted now. She can't legally tape that under Florida law.
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