The right to trial by jury is a Constitutionally guaranteed right in this country. Every person accused of a crime should have the option of having his guilt decided by a jury of his peers (whatever that means anymore). It’s a grand concept and one that we must try to uphold with all its good intentions.

But can you afford one? I don’t mean that philosophically or metaphysically. Rather, I’m asking if you have the cash for it. The intersection of the right to a jury trial and the need to earn a living is an interesting one.

Consider this scenario: The attorney can charge a flat fee for pre-trial work and stipulate in the fee agreement that the trial fee will be additional. The client has some idea of what he will end up paying if he decides to go to trial. Assuming that most cases settle prior to trial, he doesn’t worry about it too much, hoping instead for a favorable resolution pre-trial. That resolution never happens. It is now the eve of trial. The client is faced with a hefty $3000 a day fee for a trial that may last one or two weeks. That could be up to $30,000.

That stiff plea offer looks more palatable now. Some, if not most, buckle and take the plea, simply because they cannot afford to go to trial. Is this an acceptable part of the criminal justice system? Is this something we shrug off and call the cost of doing business.

Whose decision is it here? Whose responsibility is this? Who can do something to avoid this? Should clients always assume they will go to trial and hire only attorneys they can afford? Should attorneys not charge a subsequent trial fee, but merely a one-time flat fee? Should lawyers charge hourly rates instead?

Clients must make the decision of whether to plead or go to trial independent of whether they can afford the attorney who represents them. How do we ensure that is so?

Thank God I’m a public defender.