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A Georgia Court of Appeals panel has dealt a blow to the practice of allowing defendants without counsel to speak to and negotiate with prosecutors at arraignments. In an Aug. 22 decision, the panel found that unrepresented defendants who want to talk to prosecutors at arraignment must get warnings as extensive as those given to pro se defendants who want to represent themselves at trial. The panel affirmed a Fayette County trial judge who refused to allow the state to use damaging admissions a pro se defendant had made to a prosecutor at arraignment. Writing for the panel, Court of Appeals Judge M. Yvette Miller said the judge read the defendant his Miranda rights, but that was “insufficient to give the warnings required for a defendant to waive retained counsel at arraignment.” The judge should have made sure the defendant knew the nature of the charges against him, Miller wrote, as well as any lesser offenses, the range of punishment, “possible defenses, mitigating circumstances and any other facts necessary for a broad understanding of the matter. Otherwise there is no valid waiver.” State v. Pinkerton, No. A03A1201 (Ct. App. Ga. Aug. 22, 2003). Chief Judge J.D. Smith and Presiding Judge John H. Ruffin Jr. concurred. INSUFFICIENT WARNINGS The decision is the latest in a string of appellate cases in recent months that have found defendants’ waivers of counsel to be invalid. Pinkerton should send a message to state courts, said defense lawyer Stephen B. Bright of the Southern Center for Human Rights. “The bottom line, I think, on these cases is people should have lawyers,” Bright said. “State courts just have to come around to the fact that after Alabama vs. Shelton, they must provide people with lawyers … and the opportunity to retain them.” (In that 2002 case, the U.S. Supreme Court held that indigent defendants who face even the slightest possibility of jail time are entitled to a lawyer.) Pinkerton’s attorney, Walter Marvin Chapman, said when his client spoke to the prosecutor, “he should have had an attorney.” As for the Court of Appeals’ decision, Chapman added, “it looks like judges are going to have to be very thorough in the warnings they give to a defendant” to make sure the defendant knows how an attorney can make a difference at arraignment. Fayette County Solicitor General Steven L. Harris couldn’t be reached for comment. But in his appellate brief, Harris argued that if the appeals court were to require a full panoply of warnings at arraignments, it would mean that “an accused could never waive his right to counsel and talk with police officers, investigators nor [sic] detectives regarding his case.” The appellate panel affirmed a trial judge who found his own warnings and recitations of rights to defendant Demetrice Pinkerton three months earlier had been “insufficient in light of developing law on this subject.” That’s what Fayette County State Court Judge W. Fletcher Sams told Pinkerton’s lawyer and prosecutors at an Oct. 29 hearing. Sams ruled that damaging admissions Pinkerton had made to Harris at a July 23, 2002, arraignment couldn’t be used at trial. Pinkerton was charged with furnishing harmful materials to a minor or, more specifically, sending a nude photo of himself over the Internet nearly two years ago to a child. That charge is a misdemeanor. At Pinkerton’s July 23, 2002, arraignment, Sams, as was his custom, told all defendants in court they had the right to an attorney and if they couldn’t afford to hire one, the court would appoint one for them. Sams also told defendants they could choose to waive their right to a lawyer and speak with the solicitor about their case. But he added that anything they told the prosecutor could be used against them later. Pinkerton elected to talk with Harris about his case. Harris testified at the Oct. 29 hearing that “I just don’t speak to anybody out of a crowd” who hasn’t been advised that anything they tell prosecutors can be used against them. Harris said that Sams’ recitations of rights, given recent case law, “have gotten more intricate and more detailed, but it’s always been to where essentially what I would normally call Miranda rights.” Harris testified that he recognized Pinkerton when the defendant sat down to speak to him. Harris added that he showed Pinkerton the nude picture in question, and the defendant said, “Yeah, that’s me. I just didn’t know that she was underage.” Harris said he was offering Pinkerton probation with the special condition that he have no Internet access at home, but Pinkerton wasn’t happy with the offer and then said he wanted a lawyer. The conversation stopped at that point, Harris recalled. Chapman later tried to exclude the statement Pinkerton had made to Harris, arguing in a brief, “At the time of Mr. Harris’ encounter, Mr. Pinkerton did not have counsel, did not waive his Sixth Amendment right to counsel on the record and was not informed on the record of the risks and dangers of proceeding at the arraignment without counsel.” THE PERILS OF SELF-REPRESENTATION At the motion hearing last fall, Sams said he had not explained “the Tucci warnings” to Pinkerton that day. The judge was referring to a 2002 Court of Appeals decision that found a defendant who proceeded to trial pro se after signing a form waiving her right to an attorney had not made that decision knowingly. “This Court recognizes and appreciates the tremendous case loads in the courts below, especially in those courts dealing with traffic offenses and other misdemeanors where sheer volume may make waiver forms not only attractive but necessary,” wrote Court of Appeals Judge Frank M. Eldridge in Tucci v. State, 255 Ga. App. 474 (2002). While there was no “magic language” required for a valid waiver, Eldridge continued, the defendant should have been told the possibility of jail time she faced; that the court would enforce the rules of evidence at trial; that she must make strategic decisions on voir dire, calling witnesses and testifying; and that issues must be preserved properly for appeal. Sams said he should have told Pinkerton more about the perils of self-representation, including that an attorney could advise him about whether to negotiate a plea or go to trial, identify possible defenses and present them, perfect an appellate record and keep out inappropriate evidence. Pinkerton’s arraignment, Sams said at the hearing, came at a time when courts were “not as diligent in fully advising criminal defendants of their entire rights.” He said he was convinced that Pinkerton had talked freely to Harris, but Pinkerton’s decision to turn down the offer of a lawyer was not a knowing decision. “It’s one thing to make a statement knowing that it may be used against you,” Sams said, according to a transcript. It’s a different matter, he said, to understand that “an attorney may be able to develop and recognize defenses that are otherwise not readily observable.” On appeal, Harris and Assistant Solicitor Lura H. Landis argued that Tucci shouldn’t apply in this case since it involved a defendant proceeding to trial, not facing arraignment. The issue in Pinkerton’s case, they wrote, is whether he received adequate Miranda warnings. And they warned that a ruling in Pinkerton’s favor would mean defendants could never waive the right to counsel and speak with police. Chapman said he disagrees. Arraignments, he said, aren’t the same situation as when a suspect is in police custody. Arraignments are critical stages in a defendant’s case that occur early in the adversarial process, he said. The appellate ruling “in no way infringes on any defendant’s right to talk to police,” he added.

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