[I feel it will be most useful to hear Mr. Little’s unfiltered explanations about how inferior courts work, given in response to my mild liberty-oriented questions. The benefit of Mr. Little’s unmediated remarks well surpasses the demand imposed by a greater-than-normal length. If you’ve thought about traffic stops and arrest as much as I have, don’t fail to read to the end, where I make a useful observation about dealing with the officer. — DJT]
By David Tulis
My interview with attorney and judicial candidate Mike Little offers Hamilton Countians and others important insights into the operations of city courts. Towns such as Red Bank, East Ridge, Chattanooga, Soddy-Daisy run what are called inferior or corporation courts. Across the country, such courts exist to bring to municipal corporations the triply divided power structures seen in great branches of government. In a city, the mayor is the executive. The council or commission is the legislature. City court is the judicial branch. Drawing from the protestant Reformation concept of a decentralized and publicly responsive magistracy, government that is divided is deemed best.
Corporation courts are of limited jurisdiction, Mr. Little points out. If you care about your liberty and certain bedrock legal principles more than about convenience, you may elect to avoid facing your accusers in a court where no court reporter works. Constitutional liberties aren’t to be tried there facilely under private civil law, but before the people in public forum in circuit court.
A key word in the interview is “waive.” Two things are waived. You can “waive” a jury trial and let the judge be your judge and jury. On the other hand, you also can “waive the court,” or insist on avoiding city court entirely. If you take that step, you are not hurting yourself, I suggest, but potentially saving yourself. When you waive the court, you are waiving a right under statute, the judge might tell you. Yes, a statute allows city court to handle preliminary hearings and hear your case. But in waiving city court and a statutory right, you are securing perhaps more significant rights — those guarded under the constitution and its due process requirements.
Mr. Little says city court acts as a filter. To exercise constitutional rights to a jury and to confront your accusers, you might avoid the low level filter of the city court and, rather, enlist the body of the people themselves to consider the accusations. In “sending the case to the grand jury,” you may be increasing your peril in one sense: You face a full-blown trial. But you are reducing it in another sense. You are having the people approve the accusations before a trial is ordered, and if a trial is ordered you maintain your rights. The grand jury is a filter, and almost certainly one in your favor.
If the charges are minor enough or weak, and you demand that your case to rise to the grand jury, the assistant district attorney handling your case may simply drop it, given his busy docket. Your case will be pitched into the DA’s wastepaper basket because it is humdrum, routine and not rewarding for the DA professionally to pursue it in his or her discretion. Mr. Little’s view of whether a case is pursued is much less cynical than mine. The prosecutor’s job is to seek justice, not to win, he says.
The interview with Mr. Little makes clear that city courts serve state government by keeping people out of constitutional courts. They are a pressure relief valve in the administration. If people can be accused and tried in municipal corporations, the accusations against them will not clog constitutional courts, which empanel juries in each case, take a lot more time and cost more. If the efficiency of government is the thing we care most about, we can say hurrah for city court. City courts offer an informal parallel legal system of a hybrid quasi-civil quasi-criminal law for people who don’t know — or don’t care — how the state’s system works.
Plea bargaining is another way government unburdens itself of the trouble of developing criminal cases and trying them before the people empaneled as the jury of 12, the petit jury. But we did not have time to broach the subject.
Mr. Little, 54, has 15 years of criminal trial work, and 21 years in courtroom experience. He is an adjunct professor teaching law classes at UTC. Mr. Little and his wife, Lynn, have two grown sons, Joe and Josh, and a daughter, Jessica, 10. His background is in hotel corporate management, where he worked for the Read House and Chattanooga Choo Choo.
Mr. Little was gracious enough to give an interview June 7, 2012, in his office in Cherry Street in Chattanooga. At the time he was seeking election to Soddy-Daisy city court.
Corporation courts vs. constitutional courts — give up jury trial, save the government money
David Could you tell us please about city court in Soddy Daisy how it operates, what are its strengths and limitations, how does it fit into the legal landscape of courts under Tennessee
Mr. Little It is a court of limited jurisdiction, and that is established through Article 6 ‡ of the Tennessee state constitution and by the legislature. It requires that the judge run every eight years for election. So [that court] can handle state cases, that is, a state offense. So, if someone is charged with a felony and is arrested by the law enforcement of Soddy-Daisy, they would come before that court, only on a preliminary hearing.
Of course, there is no jury trial; that’s what I mean by court of limited jurisdiction. There’s no jury trial in Soddy-Daisy Court. But it is where a defendant and the state of Tennessee can have a preliminary hearing to see whether or not the case should advance based on probable cause. That’s what the judge will determine — if there is probable cause. ***. A misdemeanor case it’s the same way. Except *** that a defendant and the state, if they both waive the right to a jury trial, then they can try their misdemeanor case in front of the judge. On the merits of the case, the judge can determine if the defendant is guilty or not guilty.
David What is that kind of trial called?
Mr. Little Bench trial.
David What are the benefits to the state of a bench trial, and are there benefits to the defendant to a bench trial?
Mr. Little Well, the defendant, normally, if he is going to try the case, waive a jury and try it in front of a judge, he may feel he has a good defense, and it would be quicker to resolve the case, maybe less expensive to resolve the case there. And his chances may be better. The benefit for the government, or the state, is judicial economy. It will save money in trying cases. [A particular case] will not advance.
David Explain that.
Mr. Little Well, if the defendant does not waive his right (both parties have a right to a jury trial *** ) — if neither one waives, the case will proceed. It may have the same result in criminal court that it would have had in the lower court. And the parties that litigate the case may realize that at that [lower] level. And if they do, it would save the state money to prosecute the case; it would save the defendant money from having to pay legal expenses.
David Legal expenses would be probably representation or counsel if you went to a trial to jury?
Mr. Little Right.
David If he’s going to do it in an informal setting — which is what city court is — it tends to be often in operation quite informal — he will probably not have representation and a long preparation period for the trial.
Mr. Little Right.
David — if he’s in city court. If he says I’m waiving my rights to a preliminary hearing, and I want my rights to a jury trial, I am going to move the case up, he’s setting himself up for more expense because there’s more preparation involved, because there’s a jury.
Mr. Little That is correct. As well as [costs for] the government. Witnesses. Police officers have to come to court, being paid for their time, plus overtime, those are all reasons. And it also — if everyone exercised their right to a jury trial, the court — the dockets — would be much heavier. You mentioned that it is an informal court. I think the better way to say it is that it’s not a court of record. OK?
David What does that mean?
Mr. Little Criminal court is a court of record. Everything is driven by pleadings. So in criminal court an indictment is filed. Then discovery motions are filed. But prior to indictment, prior to grand jury in a court like Soddy-Daisy or Hamilton County general sessions court, pleadings are not filed, except for the original affidavit of complaint, and everything is done really orally. It is not a court of record. It is not recorded.
David In city court, does the state prosecutor present the case, or does the judge sorta handle that?
Mr. Little In Soddy-Daisy, a representative from Hamilton County district attorney’s office, an assistant DA, will always be there for court. Now, they do not normally prosecute traffic offenses, so those will be called up. And normally in traffic cases the defendant will not have representation, but is entitled to representation. He will be informed of that by the judge; that’s his responsibility to let him know he, the defendant, has those rights. And then the judge will ask how he pleads. If he pleads guilty, then it’s just a matter of processing his payment and fine. If he pleads not guilty, then he has a right to act as a lawyer, to represent himself as a lawyer, and present evidence and cross examine the police officer.
David Does the witness in the city court have the power to demand questions of a witness or a police officer?
Mr. Little No, the defendant does.
David So he can put the officer on the stand? He can have a witness of a traffic offense, ask that person under oath what he or she saw?
Mr. Little That’s correct. Typically what happens is the police officer will testify first, then the defendant or the accused can cross examine. That’s typically the way it works. Because, really, the accused has no reason to say anything unless the evidence already has been presented. Because the defendant doesn’t have to prove his innocence.
Your right to a trial by your peers
David Now, the common American thinks that if he is cited to city court, that’s where his justice is to be administered, then that’s where he is to take his punishment, if you will. The conversation you’ve given suggests that if an American or Tennessean would like to maintain his rights under the constitution and have a jury trial, he just “waives the court,” that’s called “waive the court”? — is that’s what the person does when the person says I’d rather [my case] go on up?
Mr. Little Well, it depends how’s he’s charged. If he’s charged with a state offense, then he has a right to a jury trial. Say, for example, he’s charged with speeding under a state statute, he has a right — it’s a city misdemeanor — to a jury trial. In order for the judge to act on that, or to find him guilty, or innocent, he has to waive his right to a jury trial. Otherwise a judge cannot [reach a verdict]. Now, if an ordinance, a city ordinance, which is not a state offense (it’s really civil in nature), you really don’t have a right to a jury trial in a civil ordinance case. You merely go before the court and defend your case, plead guilty or not guilty — and defend it.
David What would be an example of an ordinance trial, say — discharge of a pellet gun within the city limits? What would be another example?
Mr. Little Oh, littering, a certain traffic citation that is promulgated in the city code, anything like that — a dog at large, anything that’s not a state offense, anything that’s in the [city] code.
David Playing loud music?
Mr. Little Sure, exactly. Yes.
City court not dead-end; appeal a bad verdict, get new trial in circuit
David So that case could not rise to circuit or other courts. A case like that has to be tried by the city judge?
Mr. Little Right, yes. The defendant would have a right to appeal, still have a right to appeal.
David Where would the defendant appeal?
Mr. Little It would go to criminal court, Hamilton County.
David Would the response of the appeal simply be a judge’s look at the paperwork, or would there be another trial, or —
Mr. Little It would be de novo; it would be new. Yup. When you go to criminal court, you start all over.
David Say something more about your experiences in city courts per se. What have you seen in them. What have you learned from city court?
Mr. Little As a practitioner?
David As a lawyer, yes, sir.
Mr. Little Most [citizens], if they go to court at all, that’s where they go. You know, it’s on a traffic violation, or they go with a friend that’s been charged, or they go when one of their children have been charged. That’s very common. I think it is a — from a practical standpoint, it is an opportunity for young people to learn. It’s an education for them when they go to court for the first time, they realize how serious it is.
Now as a practitioner, you know, for example, sometimes I will be called and asked, “Look, a friend of mine, or my son or my daughter, has got a speeding ticket, and he has to go to court, and should he have a lawyer?” And you know, I hesitate not to tell anybody if you are going to court not to take a lawyer. The reality of it is, a speeding ticket, the worst you can do is a fine and a cost.
Informal setting; should you handle your own case
David And how much would that be?
Mr. Little Well, 50 dollars. You cannot fine more than 50 dollars, but the cost could be close to a hundred dollars or more, depending on the jurisdiction. That is not a problem, unless the Department of Safety is tracking your points and you already have several speeding tickets and then you could lose your driver’s license. It could be important. Whenever someone asks me, “I’m going to court and do I need a lawyer,” my response is always “Yes.” Not just because I’m a lawyer, and I think all lawyers need to be hired to go to court. But when individuals accused of anything go to court, they are at a disadvantage. They don’t know the system. They don’t know — I shouldn’t say the system. But they may not understand what their rights are and what remedies are available to them. Now they may very well be guilty [laughter] and they may not have a defense. But *** I always respond to that question, “Yes, you should have a lawyer.” *** I’m concerned sometimes about people who go to traffic court, city court on small ordinances that really don’t know — they think that walking out that they got a good result, but they may not have. They may have had a defense. The police officer may have been incorrect in what he had done. He may not have been. Only a lawyer will know how to handle that. ***
David A good lawyer needs how much preparation time for a routine, not too complex traffic case? How many hours would he need?
Mr. Little It depends on the facts, it depends on the witnesses, OK? Normally, flat fees are charged for something like that. Some do charge hourly. First you have to counsel with your client. You have to understand what happened. You’ve got to understand what happened before, during and after. Then you have to consider how many times I am going to go to court on this case. Is going to be once or several times? And do I need to interview witnesses? And, after all that, do I need to do research? But, in a traffic case? Probably not much time.
You can talk to a witness in a traffic case in just a few minutes. Research — you may not have to research at all. You already know the law usually, when it comes to speeding tickets, traffic offenses, [ laughter ] unless there is some sort of stop issue regarding whatever he charge is, some constitutional issue. So the answer to your question, not much time.
In city court, you are the defendant
David Have you handled constitutional cases, or cases that have constitutional liberty or freedom import?
Mr. Little Constitutional issues — yes — in my cases arise from usually the Fourth Amendment, which is search and seizure, and Fifth Amendment, taking statements from clients without the Miranda warnings, due process issues, the right to be heard, the right to be given notice. Sixth Amendment issues — the right to counsel, the right a fair hearing and jury trial. Those issues I have dealt with.
David Followup on my question earlier regarding the waiving of your rights as a citizen. A citizen — you indicated that *** if a citizen is in city court he is always the defendant. Is that right?
Mr. Little If he is charged with a state statute or violating an ordinance. That’s the only thing that would bring someone into a court like Soddy-Daisy or like Hamilton County sessions court.
David You’re never a plaintiff as a citizen in a city court, unless you are a government body.
Mr. Little Correct, correct. Otherwise you are either a witness or an alleged victim.
David And the question I had about waiving the court: If one wants to maintain his rights under the constitution for a jury trial, he simply says “I would like to transfer my case to the next level.” Does that mean he is waiting for the grand jury [to file] the charges, or what does that practically mean?
Mr. Little If it is a case [for which] he has a right to a jury trial, which is a state case, and he does not waive his right to a jury trial and the right to go before the grand jury, then the judge cannot find him guilty [can’t hear case]. The only thing the judge can do there is have a preliminary hearing, *** Now a preliminary hearing is very important, it’s a very critical stage. Sometimes a defendant can actually waive a preliminary hearing and just voluntarily send it on to the grand jury without having that hearing. That is something the accused *** has to discuss with his lawyer. There may be a reason to do that. Normally, anyone charged or accused should always — if the case is going to continue — they should always have their preliminary hearing.
David So having a preliminary hearing in a city court doesn’t reduce your liberties as a citizen who’s accused of something —
Mr. Little No.
David — You’re not waiving anything by doing that?
Mr. Little No. As a matter of fact, it’s a statutory right. A preliminary hearing is a statutory right, *** . Really the purpose of a preliminary hearing is that it’s early on in the case, and if the defendant may have some defense or some objection to the case, even being charged with it, then sometimes *** if the government cannot prove probable cause to the judge, then the judge can dismiss the case.
[City court is] a kind of a filter. We don’t want to jail citizens on weak evidence. So it’s a filter. Or after a preliminary hearing, the judge may say there is enough probable cause, but we should look at the bond again.
Indictment is your wonderful right as a defendant
David People often, when they hear about the grand jury and their case going to the grand jury, they react with a sort of terror. “No, I don’t want my case to go to the grand jury.” But is that the right way to think about it?
Mr. Little No, it’s actually like a filter. It’s their right. But the burden of the government is small. It is probable cause. Probable cause is just enough evidence to tend that something is going on, and, you know, a police officer has to have probable cause to make an arrest. He may not have observed it, but after some investigation he has developed probable cause. Now, you cannot find someone guilty on probable cause. It has to be beyond a reasonable doubt. That’s for the [trial] jury to decide. But probable cause is a smaller burden for the government to prove. Yeah, but, actually, going before the grand jury is the accused’s right. He himself cannot go before the grand jury —
David Because the grand jury is comprised of the people, and the people are looking out, presumably, for the interest of the people, and so they are going to be suspicious of phony or worked up charges by an ambitious prosecutor. They’ll say, no, we’re not going to let that [go through].
Mr. Little Right, they can what we call a “no bill.” A true bill is an indictment, and a no bill is they’ve rejected the case. When the case goes to the grand jury, it’s one sided. It’s only the government presenting their case.
In traffic stop, cop seeks to use your words to generate probable cause to arrest you
David When a traveler, a motorist, is stopped by a police officer, is the question he should ask that officer, “Am I free to leave?” And when he asks the question, does the officer at that point have to decide whether he has probable cause or not, and if he doesn’t, to say, “Yes, you are free to leave,” or ‘No, you are not free to leave,” meaning, “You are under arrest,” which at that point would tell the motorist that I need to maintain all my rights?
Mr. Little What you are getting at is the reasonable time issue. In order to make a traffic stop, just one of two things have to occur before the police officer can make a traffic stop. One is probable cause. He’s actually witnessed a crime, he’s actually clocked him by radar or saw him run through a traffic control device *** or by observing the vehicle he has found a reasonable articulable suspicion; he’s developed that. Maybe the car has gone over the line a few times, or *** he’s driving incredibly too slow, or maybe he saw somebody passing something out the window but he wasn’t sure what it was. For those, he can make a stop, to investigate, within a reasonable time. Then he can ask for the driver’s license. And then make sure he has all his credentials, for example, his insurance information and his registration. And if all that checks out, and he develops no more evidence that a crime exists, then — that’s the end of it. He should be let go.
But as far as a detained person, asking “Am I free to leave?” doesn’t do anything.
What the courts will look at is, once the stop is over — maybe he writes him a ticket for failing to maintain his lane, but he develops no other evidence — for example, he doesn’t smell any alcohol on his breath, he doesn’t see anything in the car which is funny, or his driver license comes back valid — then, once he issues the ticket, then the stop is over.
David But the police officer has a motive of generating conversation, asking all kinds of nosy questions —
Mr. Little He can investigate, yes.
David But, if the motorist has been arrested, he can say I am not going to talk about anything because I am not waiving any of my rights. Cannot he say that?
Mr. Little He doesn’t have say anything.
David He’s free to not speak.
Mr. Little But Miranda is triggered — the Miranda right is triggered — it has to do simply with the right to remain silent. So, if someone is placed into arrest — actually, custody, they don’t even actually have to be under arrest; if they’re detained, they’re considered to be in custody. In other words, they cannot leave. That is one prong. The second prong is interrogation. If the police officer begins asking questions that would, if the response would be incriminating, that’s interrogation. That’s the second prong. Once you have those two prongs, then Miranda has to be [obeyed] — the rights have to be read to the defendant.
David So Miranda applies the moment the officer asks his first question?
Mr. Little Once you have those two prongs — in custody, and you are going to be interrogated.
David So the first question that comes out of the police officer’s mouth evokes Miranda, and if you’re the motorist in the car, and you don’t want to be arrested and not to create evidence against yourself, you would be wise to not speak,
Mr. Little Right
David — To make no statement.
Mr. Little Right. right. Now, now the courts have said that initial investigation, in other words if you’re pulled over, for example, on a DUI suspicion, OK, and the officer asks you certain questions, “Where have you been,” “Have you been drinking?” — that’s been considered by the courts to be OK to do. Because it’s not really placed in custody yet. You can do a reasonable investigation in the beginning. There are some exceptions to the Miranda. *** An officer can do a brief investigation to determine — they get around that because of public policy — safety, safety issues. But as a general rule, once you are in custody, and you cannot leave, or you feel you can’t leave, and questions start coming — “Have you been drinking?” “Have you been doing this?” — well, you know, you’ve got the find that fine line. If the police officer walks up to the vehicle and smells alcohol and asks, “Have you been drinking?” Miranda has not been evoked yet. But once [the motorist is] removed out of the vehicle, he can’t go anywhere. And then he starts asking questions. Then that’s when I think Miranda applies. But now the court sometimes — defense lawyers — the courts sometimes disagree.
— End of interview —
Despite the above responses, my question, “Am I free to leave?” still appears useful if it seems likely you are another potential victim of the modern police state. The question is valuable in stepping up and accelerating the Miranda rule. The sooner you perceive yourself to be stopped (arrested), the sooner should the warning light blink and siren blare: “Make no statement! Make no statement!” If you are not free to leave, by definition you are under arrest, and anything you say can and will be used against you. But once your guard is up, you will not consent to arrest, not consent to the temptation to make a false or misleading statement (also a crime).
The question contains an element of Christian grace. “Officer, am I free to leave?” seems helpful to the officer, to crystallize in his mind if he has a legitimate cause to stop you, or is he just harassing you to liven up a slow night. It hints to him that you are willing to defend your rights in a friendly, firm way, and you’re only asking an obvious question.
The only way you can have any rights is as a belligerent claimant in person. Such a person has counted the costs beforehand of not testifying against himself about his doings, his private business, the contents of his car, billfold, brief case and so on. One who will not defend his rights has to be content with not having any.
‡ “The judicial power of this state shall be vested in one supreme court and in such circuit, chancery and other inferior courts as the legislature shall from time to time ordain and establish *** “ — Tennessee constitution, Article 6, section 1