Last year, some juveniles and young adults had a bon fire at an Orcas Island beach. Many under 21 consumed alcohol. They were discovered, and several were charged with being a minor in possession of alcohol and one or two with furnishing alcohol to minors. These are misdemeanors.

These defendants appeared at their arraignments where they each entered a plea. As I understand it, some entered a plea of ”guilty.” But some were advised by local attorneys to enter a plea of “not guilty” and did so.

Soon after, there was a community meeting on Orcas Island. I heard that a person of authority over children on Orcas Island publically complained about the entry of the “not guilty” pleas and blamed the attorneys for influencing these defendants from taking responsibility for their actions.

Given the position of this person in the community, I was very disappointed in the comments as they were related to me. Now, I acknowledge that I heard this person’s complaint third-hand and may have the substance of the complaint wrong. I am not going to divulge the identity of the person who allegedly made the complaint. But I am going to take the opportunity to clear up some misconceptions about the entry of a “not guilty” plea.

Fifth Amendment

I start with no less than our constitutional rights. A fundamental right that we all have is to not be compelled to incriminate ourselves. A “not guilty” plea is the defendant’s way of stating that, at this time, the defendant is exercising his right to not incriminate himself by admitting his guilt. The right to do so is found in the constitutions of the United States and Washington State.

The right against self-incrimination is not by any means trivial both in terms of the importance of this right and the complexity of the reasons for it. While this right is baked into the fabric of our traditions, and most of us accept it as true without any thought, I doubt most people can truly explain its rationale. Perhaps someday I will write a post on this.

Unfortunately, the complexity of the rationale for this right causes it to be misunderstood. And, when a simple concept such as “personal responsibility” is compared against this right, the right can be swept aside. I believe this is what happened in the mind of the person who complained at the meeting.

Don’t get me wrong. I am a big believer in personal responsibility. I frequently tell my clients who are charged with crimes that I have no problem with his or her informed decision to give up constitutional rights in order to take responsibility for his or her actions.

I say this cognizant of another right given to us by the First Amendment, that of free speech. The complainer was certainly within her rights to say what she said. I only point out that, perhaps unwittingly, her comments had the potential of eroding a cornerstone of our constitutional rights in the minds of those at the meeting and, more importantly, those young defendants themselves.

Constitutional Error

There is another constitutional issue implicated by the speaker’s complaints. It is possible that the defendant’s constitutional rights were violated by law enforcement. Our society considers these constitutional rights to be more important than any particular criminal conviction. The defendant may not know this at arraignment. The “not guilty” plea gives the defendant’s attorney time to investigate the circumstances of the case.

What rights are we talking about? The rights that tend to become issues in the investigation of criminal cases (in order of frequency) are the right against unreasonable (United States Constitution) or unlawful (Washington Constitution) searches and seizures, the right against self-incrimination (to remain silent), and the right to an attorney. Did the officer have the reasonable suspicion of a crime necessary to detain a suspect? Did the officer have a reasonable and lawful basis for conducting a warrantless search of a home, vehicle, person, or personal effect? Was there sufficient probable cause that a search will yield evidence of a crime to justify the issuance of a search warrant? Did the officer have sufficient probable cause that a crime was committed to arrest the suspect? Did the officer sufficiently warn a detainee of his rights before interrogation? These questions and many more have constitutional implications.

Some would say that what I am talking about here is the possibility that a defendant can “get off on a technicality.” I am not comfortable with our constitutional rights being referred to as “technicalities.” While the proper formulation of a right—the proper line to draw between the privacy rights of our citizens and the need to protect our society—is constantly debated, I believe most of us understand that these rights are important. If we do not guard constantly against erosion of these rights, then we will lose them.

That said, I have two additional, important points to make: First, I currently believe that every one of the deputies in the San Juan County Sheriff’s Office has the belief that it is important to respect these rights. It is the job of these deputies to walk the line between these rights and their sworn duty to protect the public and to investigate crime. Believe me, these lines are not always clear. We lawyers can spend hours debating whether or not a deputy inappropriately crossed a line when making a decision the deputy made in seconds. But the Sheriff’s Office’s good intentions do not diminish the importance of protecting these rights.

Second, just because a constitutional right exists does not require the criminal defendant to exercise that right. I will frequently uncover a potential violation of my client’s constitutional rights. I say “potential” because a blatant violation is rare and, as I said, the lines are not always clear. Whether to raise a potential rights violation in court is the choice of the individual defendant, and only that defendant. As I said earlier, to pressure a defendant to waive a constitutional right, especially with societal judgment, deprecates the right itself.

The only way a defendant can make an informed decision whether to pursue or to waive such an issue is for an attorney to investigate the issue and advise the defendant. The defendant cannot make an informed choice by pleading “guilty” at the arraignment. The “not guilty” plea allows the defendant time to make that choice.

Appropriate Case Resolution

There is also a very practical concern with a defendant pleading “guilty” at arraignment: Even assuming the defendant is guilty and there are no constitutional issues, the professionals have not had adequate time to determine an appropriate resolution to the case.

If you watch the law shows on TV, you may be left with an impression that, if a defendant is guilty, the judge just imposes some sentence and that’s it. The reality is that there are many resolutions of a case that could be appropriate depending on the circumstances. They include (1) outright dismissal, (2) reduction of charge, (3) pretrial diversion, (4) deferred prosecution, (5) deferred sentencing/disposition, and (6) sentencing alternatives that involve treatment. Many of these alternatives have several facets and options. At arraignment, the prosecutor may not have all of the facts necessary to decide what would be an appropriate resolution of the case. The defense attorney plays an important role as the defendant’s advocate gathering the relevant information and, if appropriate, presenting this information to the prosecutor to seek a softer resolution of the case. The defense attorney knows what information the prosecutor will find valuable in support of a softer resolution. Most soft resolutions become unavailable if the defendant pleads “guilty.”

Even if the defendant decides to plead “guilty,” there is a broad range of possible sentencing options. Sentences are tailored to the circumstances of the individual case. At the arraignment, the defendant is usually not knowledgeable enough to know what information a judge might consider favorable to the defendant. The defendant’s attorney usually has not had the time to gather this information. An early sentencing can result in the attorneys and the judge flying blind, which can cause miscarriages of justice.

All crimes, even misdemeanors, are serious. By pleading “not guilty,” the attorneys, particularly the defense attorney, is given the time to be sure that the ultimate resolution of the case is appropriate.

Court Expectations

Right or wrong, criminal courts do not expect defendants to plead “guilty” at arraignments. When a defendant decides he or she wishes to do so, everyone involved—the prosecutor, the defendant’s attorney, even the judge—stops the normal flow of the proceedings to be sure the defendant is really making an informed choice. The expectation is that, if a guilty plea is appropriate, the defendant will change his or her plea to “guilty” after (1) all of the information is available, (2) the defendant has received competent and informed advice, and (e) the defendant has had time to consider all of this.

Even the prosecutor and judge do not consider a “not guilty” plea at arraignment as a failure to take responsibility for one's actions. In my opinion, criticizing an early “not guilty” plea applies inappropriate pressure on criminal defendants, especially young ones. Doing so erodes the rights our society affords criminal defendants. This harms us all.