a public defender

Universal healthcare is a big topic of debate within the political sphere right now. Some want it, some don’t, but everyone has an opinion one way or the other.

And why? Because not everyone can afford healthcare. And we we should be entitled to it, should we not? Isn’t there some sort of social presumption that we are granted some sort of inalienable right not to be sick and dying with no one to care for us? Isn’t that why the debate exists?

So what about universal criminal defense lawyering? Because it ain’t the indigent who get screwed. It’s the not-quite-indigent who end up taking pleas because they can’t afford a trial.

There is a legal (not just social) presumption that all are innocent until proven guilty. On this basis, shouldn’t universal criminal defense be considered *more* important than universal healthcare?

In a system where the amount of justice you receive often depends on what you can afford, it kinda makes sense. Right?

Done rambling now. Carry on.

“Thank God I’m a Public Defender.”

You said it!

What actually would be a better thing would be a program where someone with a clean record (or relatively clean, eligibility could be figured out later) was eligible for loans/aid from the state. Every once in a while, they press charges against a completely innocent person (i don’t really care if some career criminal gets fingered for the one thing he didn’t do). And really, we ought to have a way to deal with this problem. I’d feel pretty bad if I were a prosecutor and I significantly hurt someone’s life and they were totally innocent. Society should help people like that out.

See, I am not so bad after all.

Saucy: Right on the money…err..I mean spot.

So what is to be done? Have a fund? What are the chances of that being exploited or misused? Should income eligibility guidelines be revised to be more realistic?

Actually, that’s not a bad idea.

SPO: It’s a start

Miss Conduct: I say that every day. Thanks for commenting!

SPO: Not so bad? You’re downright evil! I only pray you never end up on my jury, where phrases like “inadmissible propensity evidence” and “presumption of innocence” (regardless of the existence of a prior record) would mean nothing. Of course, what you *do* do is serve to illustrate how flawed our system really is. You demonstrate oh-so-well that axioms like “innocent until proven guilty” and “guilt beyond a reasonable doubt” mean nothing to laypeople (or even to legal hobbyists like yourself).

Gideon: I’ve not really thought of the details regarding just where the money would come from. Can’t we just dip into the GOP’s Dirty Campaign Money Fund? I bet there’s some to spare there.

You’re right, Gideon; this really is a problem. A person deciding whether to go to trial or plead shouldn’t have to factor in the monetary cost of a trial. As retained counsel, my solution is to include the cost of trial, discounted by an amount that reflects the likelihood (as I see it) that the case will not go to trial, in my fee on every case. In essence, I’m selling trial insurance to each client.

As usual, and as Saucy Vixen suggests in her first comment, it’s the working poor who get hosed — they aren’t entitled to appointed counsel, and they can’t afford to pay retained counsel for a trial.

I thought about you while posting this, because I know you’d posted about your fee before, but you have the luxury of charging a little extra - having an established practice. Not everyone can afford you and it is those that can’t who get “hosed”.

You are correct, except that by sharing the financial risk of a trial I make a jury trial accessible to some people who would not be able to afford the full trial fee.

The appellate courts bend over backwards to find lawyers effective, so the trial courts think that any lawyer with a pulse satisfies the mandate of the Sixth Amendment, so those who can afford only the low-bid lawyer are out of luck.

Some further thoughts from Scott (since he doesn’t know how to send a trackback)

Mark, I do think that you’ve got the better method by far - work it into your flat fee from the beginning and that way you’re able to offer a discount on a trial fee.

The problem is that not everyone does it and despite your generosity (or shrewd business sense), not everyone can take advantage of it.

How do you come to a determination of what a fair fee would be? Do you have a base rate that you charge for every case - assuming there will be no trial and then tack on a scaled amount depending on the likelihood of trial in that particular case?

I don’t think I am evil on this point at all. I recognize that innocent (I probably should have said “law-abiding”) people can have their lives significantly turned upside down because they fight their cases, and I have a lot of sympathy for them. I don’t think that it makes me evil to have less sympathy for multiple-offenders who happen to be charged with something they didn’t do. I wouldn’t convict them, if I sat on a jury, but I also don’t think society should pocket-reach for them either.

And actually, Saucy, if your client were innocent, you would love to have me on a jury because I wouldn’t convict and I would fight with my fellow jurors for an acquittal. And if the government didn’t make its case, I wouldn’t convict either, and I would put up the same fight–even if I thought he did it. It may surprise you, but I am not so arrogant to believe that my hunch (which is all you have if the government doesn’t meet its burden) justifies the heavy burden of a criminal conviction on a fellow human being. Who the hell am I to impose a criminal conviction on someone on a hunch? NFW, as we say in the transactional trade.

I am a lawyer, not a hobbyist, by the way. Just ask Gideon. I think if you go back and look at our mini-debate re: ineffective rep and non-taken pleas, you’d come to the conclusion that I won that one.

They say that internet debates are like the Special Olympics . . .

Mark’s idea has a great deal of merit. In NY, unfortunately, it would not be lawful, as we are not entitled to retain any part of a fee beyond that part earned.

All of this amounts to the shifting of risks. Marks, like insurance, spreads the risk broadly, which makes it less unpalatable than it would otherwise be. But not all defendants would be willing to take the insurance, which could end up shifting the risk onto the lawyer to “pay” the trial fee if the client cannot or does not.

Here’s Mark’s take on this.

So let me ask you all a question: Are hourly rates in criminal cases ethical? I’m not talking about contract work with the public defenders office, where you can get paid a flat fee plus hourly rates. For a private attorney - do you think hourly rates in criminal cases are a good idea?

Ethical? Sure

A good idea? Not if you want to get paid.

What if you billed the client every week? It would make for smaller bills, perhaps making it more palatable to the client to pay?

SPO:

My apologies on the “hobbyist” comment; I’m just fond of the phrase.

I still take issue, however, with the fact that you believe a “career criminal” who is indigent doesn’t deseve society’s “pocket reaching.”

He doesn’t deserve it. But he gets a PD if he cannot pay. The point is what we do about the people who can pay and are innocent. Those folks, if they have lived basically law-abiding lives should have some aid in paying for counsel of their choice.

Gideon, I have a bare minimum that I won’t go below except in certain extraordinary cases, but otherwise I set my fees based on my gut feel based on twelve and a half years of setting fees and trying cases.

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 . . . .

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.

Mark, I think you’re being obtuse. Let’s take two scenarios, Defendant X is unemployed, has about 15 convictions and gets busted. I am sorry, it’s PD for him. Defendant Y has a job and a heretofore clean record. And let’s say that, objectively speaking, the case against defendant Y isnt so hot–I’d be willing to do something for him–a subsidy, a loan, what have you so he could fight the charges.

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

Everything in this world is run by money. Even the justice system. Example, if you are charged by a certain case and you don’t have enough resources to pay in order to hire a legal counsel to help you defend in court, what will happen to you?
I guess, attorneys should be fair enough in charging fees to their clients.

SPO — I don’t have any objection to you doing something for the person with the clean record and the defensible case. Email me your phone number, and I’ll have the next such potential client give you a call for financial aid. Actually, in a way it might seem that I share your bias — that’s the sort of defendant whom I’m most likely to represent for free or cheap — not because he is most deserving, necessarily, but because that’s where I can do the most good.
But surely you can see, when the government makes it more difficult for a person with a record to get a break in criminal court, how that does violence to a bedrock principle underlying our criminal justice system: the presumption of innocence.

No, actually I don’t see it. Certainly, the government can make funding decisions (with respect to reimbursements anyway) based on prior criminal history. And certainly, the government, if it so chooses, can reimburse acquitted people on that basis as well. The government has an obligation to give indigent defendants effective legal representation–helping out not-so-indigent defendants does no violence to any bedrock principles of our law.

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.

SPO.

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.