On April 29, a woman in her 60s stood before Box Elder County Judge Christensen on a charge of retail theft, a class B misdemeanor with a fine of up to $1,850 and up to six months in jail. Christensen told the woman she had the right to an attorney and could apply for a public defender, although he had his doubts about the woman’s affidavit of financial standing.
“Everybody has to have some source of income, some way to eat—how do you get food on the table? What is your income?” he asked. The woman admitted sheepishly that she was on food stamps. Christensen pressed further, asking how long it had been since she had a job, and after she told Christensen it was 2004, he asked: “How is it that you pay rent, ever?”
The woman told Christensen in open court that her husband paid rent, but since he died, she was getting help from her local church and that she was in the process of selling her belongings to make ends meet. Christensen eventually agreed to appoint an attorney, but even after agreeing, he asked how she got bailed out of jail and the woman admitted her daughter had bailed her out.
“Can your daughter pay for an attorney?” Christensen asked, before allowing the woman to leave.
While interrogating a widow on food stamps could be considered an isolated incident, it’s troubling for a judge who, in the past three months, has been publicly chastised twice for such unprofessional conduct. In February, observers from the University of Utah law clinic on three separate instances observed Christensen criticizing people seeking a public defender. In March, ACLU of Utah Legal Director Darcy Goddard witnessed Christensen ask an indigent woman why she hadn’t tried applying at the Subway down the street.
“The judge can always inquire about the information set forth in the affidavit of indigence,” Goddard explains via e-mail. “But in every other court I’ve visited so far in Utah, the inquiry is generally limited to ‘do you swear that the information set forth in your affidavit is correct?’ ” While Goddard didn’t witness the encounter Christensen had with the widow, she says it sounds typical of his behavior. “[It] sounds exactly like what I’ve seen him do, and what he has denied in writing that he ever does.” Christensen declined to comment for this story.
Lack of funding for poor defendants on the poverty line has become a concern for attorneys with the ACLU of Utah and the University of Utah’s Civil Rights Clinic, which has been visiting and studying courtrooms since 2009. The project stems from the concern that Utah is regularly ranked at the bottom in the nation for state support of indigent public defense—48th in 2009—which Chiang sees as a “penny-wise and pound-foolish” approach to justice.
“The danger that comes when you screen [applicants for public defense] too strictly is that you have people losing their homes or selling their cars, and then they can’t get to work. Or they end up not being able to afford child care,” Chiang says. “When you have people on the margins, my advice is to err on the side of appointing counsel, because of the serious collateral consequences of pushing people on the margins too far.”
Only people who face the threat of jail time can qualify for a public defender. Often, justice-court charges are infractions that might not carry a jail sentence, or lesser misdemeanors that likely will have jail time suspended in lieu of completing probation or paying fines.
“Look up extortion in your Black’s Law Dictionary and you’ll see justice courts,” he says. “Because that’s exactly what they do.”
But it was on this type of situation that caused Michael Whiteman to challenge a justice court, arguing that a judge refused to grant him public defense, even after she threatened to throw him in jail if he couldn’t afford weekly anger-management classes.
In December 2009, Whiteman broke up with his then-girlfriend, after a fight in which he says she jumped on his chest and attacked him while he was taking a nap. Whiteman doesn’t deny pushing her to the ground and holding her down until she calmed down, but he didn’t realize that the whole incident would result in him facing domestic-violence charges in the Salt Lake City Justice Court of Judge Magid.
Whiteman still remains friends with his ex but says the hard feelings at the time resulted in her calling the cops on him. By the time his proceedings were in full swing in the summer of 2009, his ex was no longer pursuing the charges herself. Not only that, but he was even the first person she turned to for help when she was physically threatened by a tenant with mental-health issues at the low-income housing facility Palmer Court where they both lived at the time [“Mad House,” Nov. 11, 2009, City Weekly].
During the initial proceedings, Whiteman was assigned a public defender from Salt Lake County’s Legal Defender’s Association. Things were looking good, initially, when the LDA informed the prosecutor that the mother of Whiteman’s ex was willing to speak to the court regarding her daughter’s mental-health history and sometime manipulative behavior. There was even some discussion that the case might be dismissed.
Instead, the court knocked the charges down to infractions and revoked Whiteman’s public defender, since Whiteman technically no longer faced jail time.
Forced to represent himself, Whiteman fought the charges. In a July 15, 2009, hearing, Whiteman asked Magid how he could successfully appeal any justice court decision in district court without a record of the proceedings. In response to the lack of audio records in justice courts, Magid told Whiteman: “That’s just something you will have to talk to your legislator about.” Whiteman knows because he was making his own audio recording of the hearing.
While Magid agreed in court that Whiteman was indigent, she denied him a public defender, arguing that his “underlying liberties” were not in danger because the domestic-violence charge had been amended to an infraction and, therefore, carried no jail time. However, if Whiteman was noncompliant with the order, for example, by not doing treatment because of the costs involved, Whiteman could be thrown in jail for contempt of court.
Whiteman was also denied the opportunity for public defense despite his mental-health issues, citing a diagnosis of schizoprhenia from the Utah State Office of Rehabilitation, which Magid refused to accept. Magid denied his request based on her own assessment of Whiteman’s competency in filing his own legal motions after he had lost his counsel. Ultimately, Whiteman filed a formal motion to request public defense in which he successfully argued that a person living at the poverty line does have his underlying liberties threatened if a court orders him to take part in court-ordered therapy that he can’t afford.
In the recording of his July 15 pre-trial conference, Magid tells Whiteman that if he were found guilty, he would likely be compelled to take a “very expensive” 16-week domestic-violence course that could cost him between $80 and $100 for each weekly visit. Other court documents indicate Whiteman could be liable for $1,174 in court costs and fees.
In his written motion, Whiteman succinctly jabs the decision: “Though the Court has demonstrated an unwillingness to inconvenience its omnipotent insights to contrary evidence (for example, the Court’s refusal to receive evidence of Defendant’s mental deficiencies before declaring he has none), Defendant nonetheless hereby declares his monthly income and expenses,” detailing his Social Security disability payment income stacked up against expenses like rent, vehicle insurance, laundry and food for himself and his companion animal, a kitten named Pepe LaPew.
Whiteman ultimately had Magid removed from the case for denying him a public defender (Magid, who declined to comment for this story, was replaced by Judge L.G. Cutler). The case has been amended to criminal mischief and Judge Cutler has assigned only community service. The court is still looking for a single anger-management class that Whiteman could afford.
“For them to have the audacity to [threaten] to hold me in contempt and throw me in jail—it’s ludicrous,” Whiteman says. “That’s a crooked-ass, fucking thing there.”
Justice courts are a peculiar institution in Utah. They are potentially unconstitutional because cities and counties don’t maintain the courts as independent third branches. Yet, they remain necessary for many cities, if for no other reason than the sheer volume of city and county revenue they provide—$48.7 million in 2009 alone, according to revenue reports provided by the Utah Administrative Office of the Courts. Reformers like Chiang argue more public defenders can better protect the rights of indigent defendants and provide a check against reckless judges.
“It’s just a mill. It’s almost mass chaos,” Martinez says. “There’s no justice in it.”
Martinez worries that bringingmore public defenders into the mix would just legitimize a corrupt system. He says consolidating justice courts across more than one city or region would lessen the conflict between generating revenue and delivering justice.
Still others, like Schwermer, believe when all reforms take effect justice court critics will have to stop complaining about the appearance of impropriety.
For one who had fought within the system and skirted having to come up with potentially thousands of dollars for treatment classes or face jail time, Whiteman advises others not to be intimidated by the legal process. Fighting isn’t easy, especially in his case. A lack of money could have forced him to be in contempt of court and end up behind bars.
Even with the compromise, Whiteman doesn’t hold the justice court in high regard.
“Look up extortion in your Black’s Law Dictionary, and you’ll see justice courts,” he says. “Because that’s exactly what they do.”