# Denied a Public Defender: Is that legal? **URL:** \ **Category:** Factual Questions\ **Created:** [October 10, 2009, 2:47am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268 "2009-10-10T02:47:25Z")\ **Posts on this page:** 11\ **Page:** 2
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [October 11, 2009, 4:11pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/21 "2009-10-11T16:11:49Z")
IMO its all about fairness and the what if you are INNOCENT scenario ? If the system has a buttload of money to “try to get you” so to speak, unless you are rich you are operating at a signficant disadvantage. Lets say I don’t meet the poor enough criteria, which apparently is about one step above homelessness. But I am also far from rich. And I am charged with a serious crime that if convicted of, will pretty much ruin my life. So, its ALL my money or my life. Even IF I win I lose. And if I lose, its all my money AND my life. And if its a big trial, the state is going to be able to throw way more money at trying to convict me than I, being an average citizen, could possible muster up to pay for an equivalent attorney. My wild assed proposal for fairness is that if the state spends 50k for prosecuting attorney (and staff) fees, I get 50k for my defense lawyer fees. Obviously, it would be more complicated that that, but thats the general idea. As a mildly anti gubment spending and frack the real criminals type of guy, I don’t like paying for this kinda shit, but if we are going to do it, lets at least make it somewhat fair. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [October 11, 2009, 4:45pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/22 "2009-10-11T16:45:23Z")
The issue is tackling the inherent political minefield with respect to providing criminal defense attorneys. **[t-bonham@scc.net](mailto:t-bonham@scc.net)**’s position on this is basically a spitting example of it. sure, defendants are nominally innocent until proven guilty - and that’s an important presumption in terms of the actual law. politically and socially, however, society (as a group) goes ahead and assumes that if the cop arrested him and the DA/SA is prosecuting him, he’s guilty. so… good luck finding a politician willing to spend as much money as they do on District/State attorneys on Public Defenders. Someone who proposes spending tax revenues in such a fashion is ripe for the classic “he’s soft on crime” attack from his political opponent. In Illinois, the State Attorney prosecutes all criminal acts. As the name suggests, it is a state agency - funded by the State on a statewide basis [they may receive supplemental funds from the county, though]. Public Defenders, however, are exclusively funded by counties. There is bound to be a wide gap in the quality of both offices, especially in rural counties, poor counties, and massive counties with historical crime problems (i.e. Cook). So, basically the entire state. I can only wish that society and voters treated accused criminals as actually innocent in the political sphere of their lives. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [October 11, 2009, 4:56pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/23 "2009-10-11T16:56:08Z")
> [@Rumor\_Watkins](#): > > In Illinois, the State Attorney prosecutes all criminal acts. As the name suggests, it is a state agency - funded by the State on a statewide basis [they may receive supplemental funds from the county, though]. Public Defenders, however, are exclusively funded by counties. There is bound to be a wide gap in the quality of both offices, especially in rural counties, poor counties, and massive counties with historical crime problems (i.e. Cook). So, basically the entire state. Scrap this. I believe I am mistaken. Badly. Apologies! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 11, 2009, 5:03pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/24 "2009-10-11T17:03:16Z")
> [@Campion](#): > > Here is a revised OP: > > A friend was recently charged with a DUI, and asked for, but was refused a public defender. Some questions: > > 1. For what crimes does the US Constitution guarantee counsel to indigents? Gideon v. Wainwright is limited to felonies; are there cases in which courts will appoint counsel for misdemeanors? > [@](#): > > This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel. Two prior decisions control the Court’s judgment. First, in Argersinger v. Hamlin, 407 U.S. 25 (1972), this Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony,” id., at 37, “that actually leads to imprisonment even for a brief period,” id., at 33. Later, in Scott v. Illinois, 440 U.S. 367, 373—374 (1979), the Court drew the line at “actual imprisonment,” holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment. > > ``` > Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in Shelton’s situation. We hold that a suspended sentence that may “end up in the actual deprivation of a person’s liberty” may not be imposed unless the defendant was accorded “the guiding hand of counsel” in the prosecution for the crime charged. > > ``` [http://www.law.cornell.edu/supct/html/00-1214.ZO.html](http://www.law.cornell.edu/supct/html/00-1214.ZO.html) > [@](#): > > 1. What are the indigent client eligibility guidelines for Ohio? Do they take only income into account, or do assets (i.e., savings) count as well? > [@](#): > > (A) General statement of policy. When required by rule or law to appoint counsel for indigent persons, the criteria for determining indigency shall include: ownership and ready availability of real or personal property; all household income, inheritance, expectancies, and other assets; number and age of dependents; outstanding debts, obligations and liabilities; and any other relevant considerations. The pivotal issue in determining indigency is not whether the applicant ought to be able to employ counsel but whether the applicant is, in fact, able to do so. Possible sources of income, assets, and liabilities are listed on the financial disclosure form attached hereto in appendix A. [Rule 120-1-03 - Ohio Administrative Code | Ohio Laws](http://codes.ohio.gov/oac/120-1-03) And see [Ohio Public Defender Commission](http://www.opd.ohio.gov/RC_Casebook/indigency.htm) ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [October 11, 2009, 5:15pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/25 "2009-10-11T17:15:09Z")
> [@Gfactor](#): > > [ALABAMA V. SHELTON](http://www.law.cornell.edu/supct/html/00-1214.ZO.html) And your excellent case there goes on to say \*"The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court’s decisions in Argersinger and Scott, the Alabama Supreme Court reasoned that a defendant may not be “sentenced to a term of imprisonment” absent provision of counsel. App. 37. In the Alabama high court’s view, a suspended sentence constitutes a “term of imprisonment” within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, “ ‘the threat itself is hollow and should be considered a nullity.’ ” Ibid. (quoting United States v. Reilley, 948 F.2d 648, 654 (CA10 1991)). Accordingly, the court affirmed Shelton’s conviction and the monetary portion of his punishment, but invalidated “that aspect of his sentence imposing 30 days of suspended jail time.” App. 40. By reversing Shelton’s suspended sentence, the State informs us, the court also vacated the two-year term of probation. …Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama. It is so ordered." - What I read in that is that jail time= counsel, even in minor crimes. But just a fine and they are not required to. Right? ---
**Author:** ![MrDibble](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mrdibble/32/114_2.png) [@MrDibble](https://boards.straightdope.com/u/MrDibble)\ **Post date:** [October 11, 2009, 5:24pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/26 "2009-10-11T17:24:37Z")
If he was DUI, surely he could have saved himself some money by just pleading guilty? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 11, 2009, 5:31pm UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/27 "2009-10-11T17:31:10Z")
> [@DrDeth](#): > > What I read in that is that jail time= counsel, even in minor crimes. But just a fine and they are not required to. Right? Right. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 12, 2009, 12:26am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/28 "2009-10-12T00:26:29Z")
Yes, in Ohio you’re entitled to a public defender if you could be jailed for the offense with which you’ve been charged _and_ you cannot afford to hire a lawyer for yourself. Everyone ought to be advised of that at the time of arrest (per _Miranda_), and is told again at arraignment (first court appearance, when the charge or charges are read and a plea is entered). A few years ago Ohio also began requiring the payment of a nonwaivable $25 application fee for everyone seeking a public defender. I think the General Assembly was skeptical that everyone who sought a PD was actually entitled to one, and was going on the assumption that everyone can afford _at least_ $25 when push comes to shove. I’ve never observed the PD office staff as they’ve interviewed prospective clients to determine eligibility, but I’ve been told it’s a pretty cursory inquiry. ---
**Author:** ![Doctor\_Who](https://avatars.discourse-cdn.com/v4/letter/d/ed8c4c/32.png) [@Doctor\_Who](https://boards.straightdope.com/u/Doctor_Who)\ **Post date:** [October 12, 2009, 12:48am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/29 "2009-10-12T00:48:59Z")
> [@Elendil\_s\_Heir](#): > > Everyone ought to be advised of that at the time of arrest (per _Miranda_) Slight nitpick… Unless Ohio has implemented stricter requirements, a Miranda admonishment is only required prior to custodial interrogation. Miranda is NOT constitutionally required at the time of arrest. (BTW if Ohio has implemented stricter requirements, I would honestly love to learn about that). ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 12, 2009, 2:56am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/30 "2009-10-12T02:56:25Z")
Don’t think it’s a matter of state law, but my understanding is that (virtually) everyone is Mirandized here at time of arrest just to be on the safe side. Cops are trained for it. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [October 12, 2009, 3:10am UTC](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268/31 "2009-10-12T03:10:58Z")
> [@Rumor\_Watkins](#): > > so I imagine that you’d be willing to pay more taxes to pay for free criminal defense attorneys for everyone? right? No I wouldn’t have to. All we have to do is stop OVERPAYING now. I have done auditing and every government agency is SO bloated it is absolutely criminal. For instance in Chicago we have file clerks making between 40K and 45K, that is a MINIMUM wage job. We have offices of people that do NOTHING. For instance, in Chicago your CTA card breaks it can take 5-7 days to get a new card and transfer the balance. Yet if you go to the Chicago library they can issue you a new card and transfer your entire account in 2 minutes. All those people on the CTA are employed to do nothing but take extra time that a computer could do in minutes for free. There is no need to pay more taxes, just fire everyone who isn’t needed. And there are LOTS of them that aren’t. For instance, in Illinois they won’t lend you money to help you pay the rent till AFTER you’re a month late, then you’re only eligible for a one time payment. OK I can see how things like that can be abused, but by then it’s too late. You can’t get a free flu shot, but you CAN go to the ER and get treated once you get the flu. $25/shot -vs- thousand for the treatment. This is one more example of react instead of proact. If you want to look at too much taxes, stop looking at individuals and look a corporations, bailouts, overpaid government workers and such. A file clerk who should be making $8.00/hr minimum wage Il who makes over $21/hr is just as bad as giving someone a public defender who is on unemployment. It always amazes me how people scream about the small little things that don’t add up to even minor percentages of the huge abuses. [Previous page](https://boards.straightdope.com/t/denied-a-public-defender-is-that-legal/513268.md?page=1)