It was a long skid. On my right, cars were passing; on my left a wooded median. I pumped the brakes and considered jumping the curb -- the car at the light was a County Sheriff's vehicle. But there were trees and guy wires I might hit, and it was clear I wasn't going to impact hard. Hard enough, however, for the driver to jerk back against the seat, wrench the door open and stride towards me with a pissed-off glare.
I apologized immediately, genuinely convinced that my tires must have deteriorated over the summer, even though I'd recently passed inspection. The deputy informed me that I was driving too fast for the conditions, popped open his cell phone and called for reinforcements. I asked if he felt okay, and again told him I was sure I'd been driving safely; it must be my tires. He walked over and gazed for awhile at the road behind my car, which still showed signs of very long, though faint, skid marks. A Department of Public Safety (DPS) officer once taught a group of science teachers at my high school, myself included, how reliably skid marks indicate speed at the point of braking, even on rainy or icy roads. The deputy's face softened and he took my concern about how he felt seriously. He said he was okay, and looked for dent marks on his car. Neither he nor any of the officers who came to the scene could find any damage- to either of our cars.
When the local Police Department (PD) officer arrived, he patiently listened to me worry about my bad tires. Maybe I should not even drive to my class, but go have my tires changed immediately. I didn't imagine that my bad tires exonerated me for nudging the deputy (I only later learned that equipment failure and road hazards constitute valid collision excuses, according to the Traffic Code). I had already been instructed to pull off the road onto the wooded median so that rush hour traffic could pass, but the PD officer walked over and looked at the part of the road I had skidded on. Then he told me kindly that it wasn't my tires. It was just bad luck. He'd seen this sort of thing occur many times. If a car hits a spot where the oil has just been softened by the rain there's not much a driver can do. Nevertheless, he gave me a ticket for not maintaining proper distance, and indicating there had been a collision. He said that that my signing the ticket was not an admission of guilt, just an agreement to appear in court.
That afternoon, my tire dealer and auto mechanic, a man well known and well regarded in our community, verified the PD officer's conclusion: nothing wrong with my tires.
August 30: I went to the Municipal Court (MC) building all set to pay my fine and sign up for defensive driving. I had, after all, rear-ended a sheriff's car. No way a judge was going to let me totally off the hook. Even if he reduced my fine the ticket would stay on my record. The very nice clerk at the window asked if I was aware that I had another option. I said I didn't think going to a jury trial was going to help much. People would just be pissed that I wasted their time over something so trivial. She said no, I could plead for mercy from the city prosecutor. He could dismiss the ticket if he felt it unwarranted. If he refused, I could still defer it and take defensive driving. She made him sound like a real nice guy. She scheduled me for a September 22 meeting, and attached the appropriate documents to my ticket.
September 1 - 21: I called Oscar (not his real name), a friend who is a trial lawyer but has never dealt with traffic tickets, for advice about how to talk to the city prosecutor. He said it wouldn't be a bad idea to look up the statute involved in my citation - failure to maintain assured clear distance - resulting in a collision - in the State transportation code, just to be clear on what I might be facing.
It looked like a fine of $200 max for failure to maintain distance, and I couldn't find anything about how a collision changed things. As far as I could tell one could collide with a sheriff's, or anyone's car without it being an infraction, under a number of circumstances. If one had a collision and left the scene, well that was a whole different matter. But I didn't do that. Oscar said nevertheless to ask the prosecutor if the collision automatically constituted an infraction, or if the PD officer had discretion in this matter. If it was automatic, then there wouldn't be anything to discuss. If not, the prosecutor might cut me some slack.
September 22: At 10:15 AM I was in MC courtroom #1 for my 10:30 appointment with the city prosecutor on duty, Martin Winters (not his real name). and at 10:50 my name was called. I took the seat across from his desk. Immediately, before I could utter a word, attorney Winters matter-of-factly stated that he did not intend to dismiss my ticket, that I could go to trial if I wished, and that anything I said to him now could be used against me at trial. I tried to explain that I had only come in hopes of describing what happened, in hopes of some consideration, but he cut me short. Waving a sheet of white paper with some typing on it in front of me he asked if I recognized this document indicating that I had already confessed to the charges against me. My wife, who had come along for moral support heard this clearly from the gallery and was as stunned as I. I said that I had not been aware of having confessed to anything. The officer had told me I was only signing a promise to appear in court. Still holding the paper he said that these days juries were coming down hard on offenders such as myself. I heard myself asking how, hard, how much might it cost me if I lost at trial.
Suddenly I felt angry. Very angry. I had had no intention of seeking a trial when I walked into the courtroom, but now I felt differently. This man was disinterested in weighing evidence, his sole goal was to intimidate me. Even as I felt abused and infuriated, I knew that Prosecutor Winters manner was nothing but standard procedure. He did this with everyone. Most of these everyones, I also realized, were people far worse off status-wise than me.
He told me that it could cost at least $300 plus court costs. The nice MC clerk had already told me that if I did for some reason decide to go to trial, the fine would be higher than if I paid the ticket immediately, plus court costs of around $100. A total of around $300, perhaps -- not $300 plus. I tried to explore this question with the prosecutor, but he again interrupted with the piece of white paper and reminded me that I had already confessed. What did I want to do: pay the ticket or go to trial. I said I would go to trial. He turned and tapped on his computer, scribbled something on a form and told me I'd be advised when to report for my arraignment. I asked when that might be. Maybe a week or so, maybe longer.
Finally, almost forgetting, I asked Oscar's question: Was the collision automatically an infraction no matter what? Attorney Winters said, no, it was the officer's call. He didn't have to ticket me, but he had -- again holding up the sheet of white paper.
I called Oscar, who is a trial lawyer and has dealt with many prosecutors, but always as an attorney. He has never observed how prosecutors deal with the accused in the absence of an attorney, and would never allow a client of his to speak with a prosecutor alone. Nevertheless, he thought that the prosecutor's behavior sounded extreme. He suggested that I speak with Winter's supervisor. The ambiguity around potential fines bothered Oscar even more than the prosecutor's intimidation tactics.
It was possible that the statue I had found in the Transportation Code might not be the one, or the only one involved. He had a hunch, the collision implied a Class C Misdemeanor, which could be serious. I was entitled to know exactly what statutes I was accused of infracting. The statement on the ticket, or on the sheet the prosecutor had waved in front of me was not good enough.
I asked Oscar how much he would be charging for the help and advice he had already given me, if I were a client. He said he would have sent me to someone who specializes in cases like mine, but that he charged several hundred dollars an hour, normally -- except when doing pro-bono work. We agreed that most people that come before prosecutors can't afford such help and have no resources who will provide it for free. If dealt with as I was dealt with, most likely the average person would not go to trial under any circumstances.
He said that it might not be much better for people accused of crimes that entitle them to public defenders - depending upon whom the court appointed to represent them. Prosecutors are tough. We were both aware of a recent study indicating that poor people of color tend to draw lawyers who sleep through trials, never visit their clients in jail, come to court intoxicated, etc.
September 25: I called the local City Prosecutor's office and reached legal secretary Tilsom (not her real name). I described my situation, and posed the questions I needed answers to. Ms. Tilsom informed me that their office could not offer legal advice, but acknowledged that because there was a collision I might be accused of a Class C Misdemeanor - potentially a crime with penalties far more severe than those associated with the statute I had found in the Transportation code. But this was her opinion, and I was welcome to seek more official feedback from the City Prosecutor if this was my wish.
Camilla Millbury (not her real name) called me back within a few hours. I repeated what I had told Ms. Tilsom, since Attorney Millbury said that she had not been briefed by her legal secretary. I said that I had decided to represent myself at trial, and needed certain basic information in order to conduct my defense. I also described how prosecutor Winters had indicated to me that by signing my traffic ticket I had already confessed to the traffic infraction I was cited for. Attorney Millbury told me that she could not comment on Attorney Winter's actions and could not give me legal advice. The process was adversarial and I should probably seek the aid of my own attorney.
I told her that I wasn't asking for legal advice, only to know exactly what I was accused of - what specific statutes I had allegedly violated? She repeated firmly that she could not give me legal advice, that the ethical guidelines of her office forbad her doing so. I asked if I could read those ethical guidelines for myself. She directed me to the Texas State Bar for this document. I asked if she was obliged to give me even this much information, or was this simply an act of good will.
She said that she was not obligated to speak with me at all. We were both polite and friendly. I had no feeling that I was been treated specially. I told her so and thanked her for speaking with me. She said that she sympathized with me, and urged me to hire an attorney.
September 26: I awoke today with the sudden, powerful insight that the "justice system" is not designed to pursue justice, but only victory. Essentially, prosecutors approach the accused with a kind of hatred - a depersonalized hatred, which makes it even more chilling. I'm feeling dirty, guilty, raped already, and what I'm experiencing is extremely mild in comparison with what most who interact with the legal system must feel.
I called the MC and asked the clerk who answered if there was an agency that could advise someone like me concerning court procedures; how to obtain basic information about my offense, fine, rights, the prosecutor's rights, etc. pursuant to seeking justice for myself.. The clerk suggested I call the City Prosecutor's office. I said that I'd already done this, and gotten nowhere. The clerk said in that case I should call the Austin City Attorney, and gave me her phone number. The clerk also recommended an agency called Legal Aid, and gave me their phone number as well.
I left a detailed message for the City Attorney. At Legal Aid I reached a live person immediately, only to learn that only low income applicants are eligible for their assistance. If I felt I might qualify, the application process would take several weeks. However, twice a week, at specific locations, I could attend a free clinic and present questions to an attorney. Legal Aid had no other resources for one seeking to know how to prepare for and handle him/herself at trial. The receptionist said that the people at the Clinic might be able to offer some referral for that purpose, but she did not know where such services might be found.
Early in the afternoon I received a callback from Assistant City Attorney Catherine Conrad (not her real name). She informed me that she had already heard about my queries from the City Prosecutor, who works for the City Attorney. Attorney Conrad repeated almost word for word what Attorney Millbury had told me. I said that I took this to mean that the my city government, who was accusing me of an infraction, maybe even a crime, would not tell me (1) whether a prosecutor was allowed to mislead a defendant representing himself, (2) to deny such a defendant even the numbers of the statute(s) he was accused of infracting, (3) or even the procedural rules of the game that prosecutor and defendant were engaged in.
Assistant City Attorney Conrad said that she could discuss none of these things, for the same ethical reasons that precluded the Assistant City Prosecutor from doing so. She sympathized with my concern that people who could not afford lawyers, and were not entitled to have them provided by the court, apparently had no official address they could turn to for the information I was seeking which was absolutely essential to my being able to defend myself at trial..
September 27: The last MC clerk I had spoken with also instructed me concerning how to follow my case on-line and how to ask for certain records that I was entitled to based on the MC's web page: (1) my police accident report, and (2) my official case file - or at least that part of it a defendant is allowed to view. She also told me, unofficially, that the DPS might be able to link citations numbers and statutes for me. I called DPS but could only reach a message answering service. I left a detailed message and urgently requested a callback.
Next I went on-line and found a copy of our Federal Constitution.
I scrolled down to the Bill of Rights and found the VI Amendment. It says, in part that
"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."
I called Oscar. He said that traffic tickets fell in a gray area. If defined as a violation it might or might not, technically, be covered by the VIth. But if a Class C Misdemeanor, defined as a minor crime, it would seem to be covered. He could find out for me if the prosecutor was planning to define my alleged infraction as a Class C. I replied, feeling angrier by the moment at how the system was treating me, that the constitution didn't say that the attorney of the accused is entitled to know what he is accused of; the accused - myself -- has that right. Oscar didn't disagree. He suggested I call the Municipal Court Clerk, and if that didn't work, the MC Judge; and if that didn't work, the City Council. He also said "Good luck," with sympathy but little optimism.
September 28: This morning I called the State Bar and finally reached Investigator Richards. He told me immediately how to find the ethics code I was seeking; which contained a statement to the effect that a prosecutor is obliged to see that justice is done, not simply to act as an advocate for the State, and in particular is "obliged to see that the defendant is accorded procedural justice".
Mr. Richards, while entirely sympathetic with my concerns, was not at all surprised at what I had experienced so far. He didn't think that appealing directly to the MC Clerk would do much good. He was right. That afternoon when I took a formal letter to the MC, addressed to the Municipal Court Clerk herself, formally citing my ticket and case number, and requesting
"The specific statutes governing the violation(s) I am charged with, including the statutes governing fines and penalties if these are different from those governing the actual violations"
adding at the end that
"These requests constitute nothing more nor less than an effort on my part to know exactly what charges are levied against me. I understand that this is my constitutional right as a citizen. This should not to be construed as a complaint against your office. Your personnel have dealt with me cordially and responsively, if on occasion a bit confusingly."
"Thank you so much for your attention to this matter."
the desk clerk looked it over and handed it back to me suggesting that I head for the Law Library. When I asked for a written acknowledgement of her refusal to accept my letter, she took it back, scanned it into the system, and handed it back to me with a notation indicating that she had received it. She also advised me not to expect a reply. She was not in the least unfriendly, just matter of fact. She knew how the system worked far better than I did.
While at the MC I filled out the necessary forms to obtain my case file, which would be mailed in a few days. I also paid for a police accident report, which was handed to me within a few minutes.
September 29: Studying the accident report I realized that none of the diagrams included indicated skid mark measurements. I phoned the PD and finally reached an officer who could tell me if there might be other documents that had not been included with the accident report that pertained to my case, and if and how to obtain them. He said that my lawyer could have that information, but that I could not.
I said that I was representing myself. The PD official had nothing further to offer, and suggested that I call the MC. I did so and was advised to contact the City Prosecutor. I said this didn't help, nor did calling the City Attorney. Did the MC clerk have any other suggestions. He said I might call the MC Judge, and gave me the number.
At the MC Judge's office I reached Administrative Secretary Frances (not her real name). She heard me out and told me that neither she nor The Judge could offer legal advice. I could however submit a motion requesting information. I described my letter submitted the previous day to the MC Clerk and asked whether this seemed to fit the bill. Secretary Frances said that it did. I told her what had happened when I tried to submit it and what I had been told by the desk clerk. The Secretary repeated that neither she nor The Judge could offer me legal advice. I asked if an attorney could easily obtain the information I was seeking. She acknowledged this to be the case.
September 30: I phoned Oscar and told him that for the first time I felt I really understood how the game was rigged. Without a lawyer I could not obtain local due process, or even assert my VI amendment rights. The prosecution could apparently play dirty, break rules, even ignore their own code of ethics and I could not, without an attorney hold them accountable.
It was as though in a certain sports event the official referee only enforced the rules of the game when an opponent's employed sub-referee brought infractions to the official referee's attention. If professional football operated this way, the game referee could closely observe a line-backer grab a quarter-back's face mask and rip his head off, but would not throw a flag unless one of the sub-referees hired by the offense called attention to this misbehavior.
Oscar agreed. We discussed my going to trial, probably loosing and then appealing. Even then, only a lawyer could successfully raise the issue of my fair treatment, and if I was exonerated on this basis I would have won my battle but lost the war. I would have accepted the fundamental premise that only with a lawyer could I be protected. Most people cannot afford lawyers, and as we had already discussed, lawyers appointed for the indigent are often minimally competent.
Oscar also agreed, that without counsel, my vulnerability to dirty tricks was considerable if the prosecution really got it in for me. My violation could be defined as a Class C misdemeanor, subjecting me to a potentially heavy fine and even, in the extreme case, jail time.
October 15: Having received no response from the Municipal Court Clerk, or DPS, for that matter, I realized that there never would be any. I paid my ticket and opted for a defensive driving deferral. I was given 90 days to complete the course.
I feel sad for myself for caving in. I feel sadder for people less privileged than I, citizens far more at the mercy of a system which contains laws to protect people but makes it very difficult for people to see those laws enforced. Many victims of Katrina are finding themselves in limbo because of insufficient legal assistance at this crucial moment.
I understand now how truly significant this lack is for them. No matter how well versed in the law, no matter how diligent, no matter how smart, those forced to deal with official bureaucracy are routinely denied basic access unless accompanied by an attorney. This process is not codified anywhere that I can discover; nevertheless it exists, and, in my view, it has powerful anti-democratic consequences.