By Hans Sherrer
Justice:Denied magazine, Issue 26, page 12
The presumption of innocence is considered the bedrock of American criminal law. From it flows the principle of due process that includes trial by jury, confrontation of accusers, assistance of counsel, and the government’s burden of proving guilt beyond a reasonable doubt.
However the presumption of innocence is so meaningless to some King County, Washington (Seattle metro area) judges, that for years they have not told defendants of their right to counsel and other due process rights. Consequently those state judges have accepted guilty pleas from defendants and sentenced them to jail without ever telling them they will be provided a lawyer at no charge, and that they can demand a trial and confront their accuser.
On June 18, 2004 the Washington Commission on Judicial Conduct (WCJC) censored one of those judges, King County District Court Judge Mary Ann Ottinger – for her “years-long practice of failing to tell defendants they had a right to counsel.” 1 A judge for 12 years, Ottinger’s conduct attracted attention after she sentenced to a year in jail, a girl with no prior record who pled guilty to being a minor in possession of alcohol. 2 State law requires a judge to publicly and on the record advise a defendant of all his or her rights and the consequences of a guilty plea. However Ottinger did not inform the girl of that information before accepting her guilty plea. After the girl was jailed for two months, defense lawyers heard of her plight and persuaded another judge to issue a writ ordering her release. The WCJC found “the nature of the violations cannot be overstated,” and noted Ottinger’s mistreatment of the girl was a “routine” practice. 3
After Ottinger’s censure, several defense lawyers commented that the failure of a judge to inform a defendant of his or her rights was not unusual. In summarizing a yearlong study of the problem by the Defender Association in Seattle, Director Robert C. Boruchowitz reported, “It’s very common. They [judges] figure people will plead guilty and get it over with.” 4 Public defender Christine Taylor said at least three defendants in Seattle have recently been released from jail after defense lawyers learned their judge had not advised them of their rights. 5
Ottinger was also censored for secretly aiding the city of Issaquah in a lawsuit the Seattle suburb has against her employer - King County. Ottinger’s covert services to Issaquah included providing legal advice and ghost writing correspondence.
The same day Ottinger’s censure was made public, Municipal Judge Patrick Burns was reprimanded by the WCJC “for writing “NTG” on the bottom of hundreds of defendants’ court paperwork.” 6 Defense lawyers had complained the initials stood for “Nail This Guy,” and the WCJC agreed it created the appearance Judge Burns was prejudiced against a defendant whose file he marked with the label.
The conduct of Ottinger and Burns was not considered serious enough to warrant removal from office or a suspension. However, they were required to take judicial ethics training to prevent a reoccurrence of their lapses in judgment.
1. District Court judge censured: Defendants not told of right to counsel, Maureen O’Hagan, Seattle Times, June 19, 2004, p. B1-2.