The Miranda warning says, quoting from Wikipedia, “If you cannot afford an attorney, one will be appointed for you.” What does that mean exactly? Lawyers are expensive. I don’t most people people who aren’t at least upper-middle class can “afford” a lawyer for any substantial sort of trial, if by “afford” you mean it won’t hurt them financially.
What are the standards? Is it only if a person doesn’t have the money at all that they get a public defender? Would a person be denied a public defender if it meant they had to sell their house in order to pay an attorney? Quit college, or spend the kids’ college funds, or a retirement fund?
Are there some standards relating to a person’s finances alone, or does it depend on how much the defense is going to cost? (ie, some person might be able to afford a defense on a simple assault charge, but not for a high-profile murder case.)
In Washington state, you have to be below the recognized poverty level. I deal with municipal court, where they are pretty lax about this. The defendant fills out a form, documenting their income and expenses. Non-cash assets don’t seem to be considered (so it wouldn’t matter if you own your house, so long as your income is low enough). The judge reviews it and decides if they qualify. If they do, the public defender is appointed.
Except in rare occasions (such as when we know the defendant is lying about their assets), the judge accepts the form without an investigation. If it is determined later that you could have paid for your own lawyer, the court may order you to repay some or all of the public defender’s fees.
I am also in Washington State. I don’t know for real, but two pieces of anecdotal evidence:
a. My room mate got an MIP and possession of marijuana the other week. They weren’t going to give him a public defender until he asked, then they just gave him the number of the public defenders office. As far as I know, they made no inquiries as to his income or financial state.
b. my other room mate got into some more serious trouble last year: felony possession w/ intent to traffick. Similarly, no one made an attempt to help him out or inform him that he could get a lawyer (beyond his Miranda warning) but he too asked and received.
So to summarize, in my experience in the State of Washington, the determining factor in public defender assignment is whether or not the defendant requests one.
Check out Gideon v. Florida (??), the landmark Supreme Court case in this area/
The Constitution states that any person accused of a crime has the legal right to counsel. End of sentence. The interpretation is whether or nor anyone is entitled to a free one or only poor people, in the Gideon case the defendant being poor was specified.
This is unclear because I’m not too sure about how this is actually applied. I’m not a lawyer (yet)
If I were arrested, I wouldn’t have the first idea on how to find a lawyer. But I don’t want to bankrupt myself paying my legal fees. Do the police or the court recommend people who are cheap? How would it work out if I asked for a lawyer, and then paid the public defender out of my own pocket at the same rate?
Interesting. I always assumed that anyone could get a public defender if they chose not to hire a private lawyer.
But then, I can’t imagine wanting a public defender if I could afford a private lawyer. It’s not that I think they’re all bad lawyers (although I’ve heard some horror stories), it’s just that they’re generally horribly overworked.
If you are in criminal court in a large enough city, all you’d really have to do is call out “I need a lawy–” and several will race to stuff their business cards in your mouth.
More generally, most state or county bar associations will have a referral service, and there’s always the yellow pages. The police and the court will not provide recommendations (although your bail bondsman might).
My roommate got a DUI a month ago (we’re in Ohio).
He had to go to court and he was given a sheet to fill out asking about the “household’s” income and expenses. The clerk told him they needed MY financial info too, even tho at the time we weren’t even roommates he was “Guy who gets to stay in my basement for now because I am too nice to throw him out on the street.” We’re not related nor were we in any way in a relationship. I honestly barely knew him.
Our mutual friend was with him and he pitched a bit of a fit because he knew I’d be pissed about this, and having my financials on there would keep him from getting a public defender if they considered my income as his “household.”
Anyway, the mutual friend called some lawyer friends and got it confirmed that I didn’t need to put my stuff on there.
I helped him fill out the form - they wanted all his income and expense info, itemized (rent, groceries, fuel, entertainment) on this IRS-like form. He got his public defender indeed.
And, yes, it totally felt like I was in Alice’s Restaurant.
In Virginia there are three possible methods by which you may be found eligible for a public defender (or for court-appointed counsel).
If you receive state or federal public assistance, such as food stamps, AFDC, Medicaid, or SSI, then no further determination needs to be made. If not, then the accused must complete a financial worksheet, listing net income, financial assets, and unusual expenses (medical care, care for extended family, etc) and the court may determine that sufficient cause exists for public defense. Finally, there’s the “catch-all” exceptional circumstances, where the judge may, in the interests of justice, assign an accused defense counsel.
Practical experience from Virginia. While in traffic court (got off scot free thank you), some was up before the judge having their arraignment (I think). Judge asked if he needed a public defender and the guy said he did. The court clerk then asked him a bunch of financial questions right there, spent a minute or two doing math, and then pronounced him ineligible. I have no idea if this is only how its done in traffic court, or only in this area, but there you go.
Oh, the reason a lawyer was being considered at all was because the charge had potential jail time associated with it.
I thought that so-called public defenders were private lawyers that were assigned by the court. Just as we have an obligation to serve as a juror, practicing lawyers have an obligation to serve as public defenders. No?
In Virginia, most populous counties have a public defenders office: a staff of salaried criminal defense lawyers who are assigned indigent defendants from that county. In counties where there is no public defender’s office, or in cases where the PD’s office has a conflict, the judge may assign counsel. Typically, he has a list of lawyers who either are essentially willing to work occasionally virtually pro bono (the difference between their usual billing rate and the mandated pay for court-appointed cases is usually quite large) or who devote most or all of their time to working cases like these, in essence “free lance” public defenders.
But no – the judge doesn’t put all the practicing attorneys in the state into a hat and draw a name, akin to the imposition of jury duty on the public.
In my Cleveland-area court, there is a large and very capable (although overworked) taxpayer-funded public defender’s office. If you’re charged with a crime for which you could go to jail if convicted, you’ll be asked at your arraignment if you can afford your own lawyer. If you say “no” and are at or below the Federal poverty level, you qualify, and the PD will be appointed by the judge or magistrate. You have to fill out a form disclosing your financial situation. As of a change in Ohio law two years ago, you must also pay a nonwaivable $25 application fee. There is very little, if any, investigation of how wealthy you really may be, and APDs have been known to skeptically observe that some of their clients drive nice cars, have non-cheap jewelry and are quite well-dressed.
Once the PD has been appointed, it’s up to you to go in and meet with an APD during regular office hours, and tell him or her about your case. You can’t just show up back in court, weeks after the PD has been appointed, and expect him or her to learn about your case on the fly and represent you (esp. at trial) unless it’s a very simple case. The APDs rotate regularly through each of our courtrooms, both county and muni, so they get lots of litigation experience. In my experience, they’re smart, skillful and passionate about their work, although the older ones tend to get jaded and more than a little cynical. The average APD is considerably better than the average private defense lawyer, IMHO and YMMV.
True, but it’s worth pointing out that many public defenders aren’t just “not bad” - they’re genuinely quite good. The DC Public Defender’s Service, for example, is widely regarded as one of the best in the country, and newly minted attorneys of an idealistic bent fight hard to get jobs - it’s very competitive.
You might want to get your own place… The bar tends to take the ethics portion of the application rather seriously, at least in CA, and the next time they get busted, they might say it was your shit in the apartment.
When hubby was a DA, there were lots of “true believers” in the public defender’s office. He actually applied there as well, but more people wanted those jobs than did the DA jobs, I guess!
They worked their asses off, though, and burn out was high. Then again, it was just about the worst county in CA crime-wise, so…
And this-
ain’t far off the mark, although it’s unnecessary to have your card handy. At the downtown courthouse in Santa Ana, CA, if you are wearing a suit and carrying a briefcase, you will be stopped at least half a dozen times by people who showed up for a court appearance and decided that NOW would be a good time to get a lawyer. Hubby didn’t mind- if it was something easy (possession, DUI, reckless), he’d just send them over to the ATM machine and if they came back with at least $200-300, he might represent them.
