In the reading of the Miranda rights, there is a line in it that states something like “if you cannot afford an attorney, one will be provided for you.”
What if I can afford an attorney, but don’t want to pay for one?
Let’s say I find myself in court on a bogus charge. The proof I have (the defense) is pretty much straight forward and it’s a slam dunk. (something straightforward as I was accused of committing a crime in state A, on west coast, but was at work on date and time of crime in state B, on east coast).
For whatever reason, prosecutors won’t drop charges, and judge can’t convince them to do so. Now, I am not an attorney, and know very little of court proceedings, how to file motions, etc. So I have a legitimate fear that if I screw something procedural up and the judge is in a bad mood, he might not want to give me a break.
So, just to make sure, I ask for a court appointed lawyer. Do I have to provide proof of need? Or, am I stuck paying a legal bill for an attorney even though the law is on my side?
Or, in all cases, does the defendant sue the plaintiff for all defense fees?
It depends on the state, in Texas at least you must qualify as indigent for a public defender. This is harder than you would think, you really have to be both penniless and have documentation proving this. Even if you do qualify initially, the state can come after you for the money later at their whim, making it hard and kind of risky.
In my state, you must demonstrate proof of need before being assigned a public defender. If you have the means to pay, you are not required to hire an attorney, but there’s a phrase that applies to most people that attempt to defend themselves in criminal actions—convicted felon.
In certain types of civil actions, the prevailing party can request attorney fees, which are discretionary with the court. Otherwise, in the U.S., most of the time each side pays their own fees.
It sounds to me like it’s not as much of a slam-dunk as you think it is. Alternatively: The facts might be on your side, but the law might not be.
Either way, there are LOTS of people who find themselves to be in the same position as you are describing. And most of them are totally wrong. Even if you are the exception who is truly innocent and getting screwed by the system, I hope you can see how it is in society’s interest for defendants to be represented by those who know the workings of the law, and for that service to be provided at public expense only when truly warranted.
From the taxpayer POV, I prefer that people who can pay their own way do so, so the tax-funded resources are available for those who truly need them instead of getting used up by people who HAVE their own resources.
Scenario mistake! The entitled right to a court-appointed attorney for the indigent applies in*** criminal ***cases, and there’s no defendant-plaintiff countersuit (or “loser pays”) in criminal cases (heck, there’s no “plaintiff”; the state/crown is accusing you, not suing you).
In ***civil ***cases, if they find it worthwhile, an attorney may pick up your countersuit on a contingent basis.
Already acknowleged by the OP.
The right to competent legal representation is one of those that are conceived of along the lines of “the state shall not deny you the opportunity to have this”, so if you can afford representation but don’t want to, the taxpayer is not obligated – save maybe if for some reason no local lawyer were willing to hire himself to you in which case the Court may order one to suck it up and be your defender.
You only get a free lawyer if you qualify. How you qualify varies from place to place. You might have to fill out a form, or the judge might just ask you some questions about your finances. You have an absolute right to defend yourself, though judges often discourage it. In criminal cases, there are no refunds for attorney fees, even if you eventually win.
George Zimmerman (remember him?) and his wife tried to qualify as indigent to get a free public defender fraudulently, they both got into legal trouble for it.
You might be able to sue (civil) for wrongful arrest etc. if you were railroaded on a criminal charge. IANAL but if I recall you can only win if you can prove that circumstances were well beyond simple mistake - a serious disregard for facts, or malicious prosecution or such. If you need to get to that level of proof, you better have a (paid for or contingency) real lawyer for the civil suit too.
In Ohio, you have to pay a $20 nonrefundable application fee for a public defender and also sign a form (I don’t think it’s an affidavit, but I could be wrong). From all I’ve heard, the PD doesn’t ask too many questions as to whether or not you can actually afford a lawyer unless you show up dripping with jewelry, or they notice you pulled up in a Jag.
As noted above, you cannot sue the other side for legal fees in a criminal case.
This system seems to make it trivially easy for someone in the prosecution to have a vendetta against someone and thus prosecute a case they know they won’t win, just to bankrupt the individual.
I really don’t understand how people justify these rights without absolutes. Either the information justifies everyone having a right to a lawyer, or it doesn’t.
As in the case of the Duke Lacrosse teamparty - if the prosecutor is pretty blatant about it, then the remedy is a civil suit - which would require a significant expenditure on lawyers at the start, unfortunately. It may have the bonus, though, of having the fellow fired and disbarred.
Presumably there is a trail of evidence. As in the Zimmerman-Treyvon case, several people are involved. If the prosecutor as in this case declined to bring charges, there is the recommendation of the police investigating, etc. that charges be laid. SO, what were the recommendations of others involved? If they all have it in for you, as in the Duke case, then you need that expensive lawyer. Unless the DA is the head attorney, presumably he discusses the case with his boss, who will decide whether to bring a losing case to trial, etc. Then the judge has to look at the evidence in the preliminary hearing and decide whether they will get beyond the first day of trial…
If they had decent grounds to charge you, and didn’t blindly ignore or suppress evidence to the contrary, then you probably have no grounds to complain about the charges or sue over them.
Everyone does have a right to a lawyer. The question is whether the public should pay for your lawyer if you have the means to pay yourself. The answer from the courts is that if you have the means, you can’t burden the taxpayer.
Another datapoint. In New Jersey in municipal court a public defender will only be involved in both traffic and criminal matters if there is a “consequence of magnitude.” That means the possibility of jail time, heavy fine or long term loss of license. You are not getting a PD if the worst that can happen to you is a couple of points. A request is made to the sitting judge at the first appearence and the defendant fills out a form about his financial status. The judge and only the judge determines if a PD is going to be assigned. I was surprised to find out that a $200 fee is required even for a PD. Welcome to NJ, the home of the surcharge.