The topic seems to change every time you post. Now we’re talking about reimbursing acquitted people now, rather than giving people “aid from the state” to fight their cases when, “objectively speaking”, the cases against them “[aren't] so hot”. Just as I don’t object to you giving aid to people with clean records who you think have defensible cases, I don’t object to the state reimbursing acquitted people. That isn’t much of a solution to the problem Gideon describes, but at least an acquittal provides an objective reason to reimburse the accused. Whether an acquitted person gets reimbursement, however, shouldn’t depend on whether he had been in trouble before. A person who got in trouble and then cleaned up his life is no more deserving of a false prosecution than a person who has never been caught.

That brings us back to what you were first talking about: the state giving my money, in the form of loans or aid, to people with clean records and “objectively” not-so-hot cases against them. There are several reasons it’s a bad idea:

First, we Americans aspire to presume everybody innocent of the charges against them, regardless of their criminal records. I guess we believe in redemption, and that people discharge their debts to society when they are punished for their crimes. That’s why the accused’s criminal record is generally inadmissible in the culpability phase of a criminal trial. That the presumption of innocence is not always honored is not a reason to discard it.

Second, like all such liberal proposals, it ignores the fact that the government is generally incompetent to decide how to spend my money. Specifically, you imply that the government, which has decided that its case is strong enough to prosecute someone, might decide which of its cases are weak enough that it should subsidize. If the government could be trusted to decide which cases were weak enough to deserve subsidies, it could be trusted not to file the cases in the first place.

Forgive me for being a bit harsh, but your reference to the “presumption of innocence” is laughable. The state can incarcerate presumptively innocent people–it’s called being held without bail. There, the government is taking away liberty from a presumptively innocent man. And you mean to say that the government gets to do this, but cannot decide to reimburse some non-indigent accused on the basis of a prior record. That’s bunk. Of course, there are probably a ton of judges willing to swallow such nonsense.

I don’t see how making that distinction earns me the snarky comeback about due process etc.

Scott, I know that in New York personal injury contingency fees are much more strictly regulated than here, but they are still legal. In those cases the fee is not necessarily “earned” by the amount of time spent on the case. Why not redefine “the part of the fee earned” in a criminal case to include a (discounted) fee earned by accepting the risk that you might have to go to trial without any more money?

I don’t make the law. In re Cooperman (as it happened, I wrote the amicus opposing the lawprofs who took the position that criminal defense lawyers should get screwed no matter what they do.)

As you know, contingent fees are unethical in criminal cases, yet standard in personal injury cases. There are numerous anomolies, but they relate to certain distinctions in the nature of the relative attorney/client interests at stake. In criminal cases, the courts have held that the right of a defendant to change counsel at will trumps the right of an attorney to contract with a client for a fee, such that fees are only earned as service is provided.

In a fairness context, is it right for a moderate income defendant to pay “trial insurance” that reduces the risk of a wealthy defendant? What it that moderate income defendant decides, a couple months after retaining you, that he wants someone else to try his case. Do you give the money back, or has he lost the money as well as his faith in his counsel?

And if you give the money back, then the insurance equivalent concept falls apart. But if you don’t, then how is the client to retain new counsel when old counsel retains the cash. Should defendants be forced to stick with an attorney in whom they’ve lost faith for financial reasons? Or have we simply traded one financial problem for another? Or does it amount to a different issue of financial extortion, where the defendant is forced to go with an attorney with whom he disagrees just like he is forced to take a plea because he can’t afford trial.

I could go on about this for days, but you get the point. The issues has more depth than shows here. It’s a great question, but not that easily answered.

Hourly billing is ethical, but not a good idea in criminal cases for any but the wealthiest defendants. If an accused were paying hourly and being billed weekly there would be many weeks with very small bills and then (even at low CJA rates) a week of trial would easily cost $5,000. A lawyer would be a fool to go into a trial without having been paid for the time he would likely spend on it, so the client would have the same problem as in a split-fee regime: pay for the trial before the trial, or plead guilty.

Scott, I know that in New York personal injury contingency fees are much more strictly regulated than here, but they are still legal. In those cases the fee is not necessarily “earned” by the amount of time spent on the case. Why not redefine “the part of the fee earned” in a criminal case to include a (discounted) fee earned by accepting the risk that you might have to go to trial without any more money?

SPO, we’ve spent 200+ years trying hard to give the same due process to those with criminal records as to those without. But maybe you’re right. Maybe now, now that the public is so fearful, we should reinstitute the writ of outlawry.

So: we need to set up a system to help the innocent working poor (only those with clean records, natch) afford counsel of their choice. How do we determine who is innocent and who is guilty? O, if only we had some way . . . hey, wait! I know!

We could gather together a dozen of the person’s peers and have the government, represented by a prosecutor, try to convince the twelve that the person, represented by counsel, was guilty beyond a reasonable doubt. We could call this process a “jury trial”.

Of course, before this “jury trial” we would appoint counsel to the indigent and provide aid to the innocent working poor. But how do we determine who is innocent and who is guilty? If only we had some way . . . .