By Andrea Bernal
OAKLAND, CA – In a preliminary hearing on Thursday in Alameda County Superior Court’s Rene C. Davidson Courthouse this week, a man accused of kidnapping and illegal possession of a firearm, was present in the courtroom (in custody) without a lawyer after Alameda’s Criminal Court Appointed Attorneys Program failed to appoint him counsel.
Despite the many efforts made by Judge Kimberly Colwell to have CAAP appoint counsel to the accused, he was in court, again, without a lawyer to represent him.
At the start of the hearing, Judge Colwell addressed the accused and said, “I am having a hard time trying to find you an attorney.”
“We are trying to find you someone ourselves,” Judge Colwell said, adding she would attempt to find the accused a lawyer in the courtroom that could represent him.
Judge Colwell apologized to the accused for the fact that he had still not received counsel and told him that they would return to his hearing in a few minutes, noting, “I’m waiting for the DA to come back.” Judge Colwell was referencing Defense Attorney Gary Lee Sherrer who was going to return to the courtroom after finishing with another client on a different case.
Defense attorney Sherrer re-entered the courtroom moments later to which Judge Colwell, off the record, addressed Sherrer directly, asking him if he would be willing to make an “exception” about not taking on new cases in court “on her order.”
“I have a man who has been here several days,” Judge Colwell said in reference to the accused, adding, “I’ve contacted CAAP…CAAP keeps telling us they can’t find anybody.”
According to Alameda County Bar Association, through the Court Appointed Attorneys Program that Judge Colwell referenced, qualified attorneys are appointed to represent “indigent criminal defendants or minors whenever the public defender is restrained by a conflict of interest.”
In the accused’s case, CAAP has not been able to properly appoint counsel to the accused, who had been in court for several days, according to Judge Colwell.
Defense attorney Sherrer asked Judge Colwell what the class of the case was with regard to the charges at hand. Defense Attorney Sherrer said that in this case, the class of the case “has an impact on who can be appointed.”
Sherrer said, “If it’s a maximum of 25 years or less, I can take it,” meaning if the case was a Class 2, Sherrer could represent the accused but if the case was a Class 1, Sherrer said he would likely not be qualified to do so.
To this, the District Attorney said, “Your honor, with all the special allegations included…this may be a Class 1 case.”
At this point, the accused was brought back into the courtroom and Judge Colwell went back on the record to address the accused and inform him on what was going on in the courtroom, explaining, “I was just trying to get you an attorney now.”
Judge Colwell said to the accused, “I know you’ve been here yesterday and you had no lawyer with you yesterday. We called CAAP yesterday. We called CAAP again today and they said they don’t have anyone. I was just trying to find a lawyer for you in the courtroom but Mr. Sherrer says he does not have any qualifications to represent you. Though, he has the qualifications, in my mind.”
Still with no luck of appointing the accused a lawyer to represent him, Judge Colwell said, “So we have to go back to square one and contact CAAP again.”
She proceeded to state she does not want to “let up on them” and acknowledged the inconvenience that this process has caused for the accused.
“I’m gonna call CAAP again today and tell them they have to have someone here with you tomorrow,” Judge Colwell added. “You’re facing a lot of time so we have to get you a lawyer.”
At this point, the District Attorney addressed Judge Colwell saying that he saw “no good cause” to “go past the 10th day on this matter.”
“Is today the 10th day?” Judge Colwell asked the DA for the People.
“I believe so,” The DA for the People responded.
To this, Judge Colwell said she would dismiss the case on the court’s motion. Following this, both Sherrer and the DA for the People asked to approach the judge off the record.
Back on the record, Judge Colwell said, “I’m gonna retract that…The case will remain…And I am choosing to appoint Mr. Sherrer myself.” She added she believes he is very qualified.
Judge Colwell went on to address CAAP in this matter, saying she was not going to use CAAP for the case because, “They’re thwarting the Constitution. They do not have people here when they’re supposed to have people here.”
In addressing the accused directly, Judge Colwell said, “You…end up suffering and that’s not okay with me.”
Judge Colwell proceeded to let defense attorney Sherrer know that if there was any issue that arose with CAAP regarding her appointment of Sherrer to the case, then they were to contact her.
The accused, the judge added, “deserves a lawyer.”
