Betsy Speicher

Should the government pay for criminal defense?

35 posts in this topic

From another thread:

One has the right to counsel, for example, but not the right for that counsel to be funded by taxpayers which is what the "right to counsel" has come to mean.

I think a criminal defendant should have his defense funded by the taxpayers -- if he is not found guilty.

Making an innocent person pay for his own defense puts him at a distinct disadvantage to the prosecution which is funded with taxpayer dollars. It can also lead to the abuse of political power. Observe the hundreds of thousands of dollars the Duke lacrosse players families' had to pay, while the District Attorney used the case to garner support from black voters. Observe what it has cost Ezra Levant and Mark Steyn to defend themselves in Canada.

The idea of "loser pays" makes even more sense in criminal trials than it does in civil cases. In fact, I think the government should pay much more than the actual attorneys' fees if they lose. A falsely prosecuted innocent man has lost a lot more than what he had to pay his lawyers.

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While I think this is a just solution, how is the defense going to get this money from a convicted criminal serving prison time, when that criminal couldn’t even afford their services while they had income? Do they have to wait until the criminal is released to start getting payments? What do you do in the case of a life or death sentence? Does the defense work for free?

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I agree with the state or the feds paying for an innocent man's legal fees but he or his estate should commence a claim. The assumption of innocence till proven guilty has nothing to do with any individual's circumstances that have led him to disadvantage himself of the right to be legally represented - unless one wishes to state the right is alienable from oneself.

It should be a separate civil matter to seek other compensation, similar to other personal injury claims but this time for the accused's loss of opportunity and actual income loss, and quantifiable suffering such as detention conditions, loss of a home due to default on mortgage payments, denial of pain medication, legal and court fees, etc. Due to the documentation and examination for discovery procedures, there are few guilty accused who will pursue the claim to completion due to lifestyle/choice. But the opportunity to do so is already available to both innocent and guilty individuals alike, since guilty persons can experience some of the same suffering as an innocent person. In my view this would be better than attempting to attach a victim surcharge to the state/feds since much suffering can be experienced by an innocent (or partially innocent) individual even when charges are stayed/dropped, not just when trials are heard. And a guilty person can experience much suffering even when charges are stayed/dropped because there were procedural errors committed which have nothing to do with the accused's guilt or innocence. Such claims settled between innocent persons and law agencies may result in reforms to investigative procedure and intelligence gathering prior to detention and/or arrest, but continuing the public defender system in the event an innocent person is wrongly accused, is less likely to have the same effect either on a short- or long-term basis.

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While I think this is a just solution, how is the defense going to get this money from a convicted criminal serving prison time, when that criminal couldn’t even afford their services while they had income? Do they have to wait until the criminal is released to start getting payments? What do you do in the case of a life or death sentence? Does the defense work for free?

What I am proposing is that the government always pays for the prosecution, win or lose. Prosecuting criminals is a proper function of government. "Loser pays" only applies to the cost of the defense and only after the case is decided.

How does an innocent but indigent man pay his lawyers before the case is decided? I think a defendant with a good case has an excellent chance of making a contingency fee arrangement, in which the attorney agrees to collect only if he wins, particularly if the government pays additional compensation when it loses. A defendant who is obviously guilty would have a harder time, but he might still get representation from a law student or young lawyer seeking experience or an attorney seeking publicity. In addition, there are also charities like Legal Aid or the defendant can represent himself.

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While I think this is a just solution, how is the defense going to get this money from a convicted criminal serving prison time, when that criminal couldn't even afford their services while they had income? Do they have to wait until the criminal is released to start getting payments? What do you do in the case of a life or death sentence? Does the defense work for free?
Interesting questions. Especially since, with a career criminal, every dime a criminal made has been stolen from someone. And where are they going to obtain that money after they get out? I can just smell this turning into a government works program run and staffed by crooks, paid for at taxpayer expense... uh... in other words, just another standard government agency. In a few years, that agency would be a government-supported Mafia.

Taxpayer-funded defense is one of the few legitimate "subsidies" we have; the guarantee of a fair trial demands it. I agree with bborg's concern, even though I also concede that Betsy makes a good point. But considering the nature of a criminal, especially a thief, how do you solve that problem? Can't we just cut them up and sell their organs? It would certainly be a disincentive. And if they were later found to be wrongfully convicted, we could just sew it back on?...

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How does an innocent but indigent man pay his lawyers before the case is decided? I think a defendant with a good case has an excellent chance of making a contingency fee arrangement, in which the attorney agrees to collect only if he wins, particularly if the government pays additional compensation when it loses. A defendant who is obviously guilty would have a harder time, but he might still get representation from a law student or young lawyer seeking experience or an attorney seeking publicity. In addition, there are also charities like Legal Aid or the defendant can represent himself.

How can a defendant be “obviously guilty” before the facts have been investigated by the attorneys? Does a defense attorney get a trial period, over which he gets to start researching and then decide if he thinks his client is guilty (and therefore whether he has a good chance of being paid or not)? What is the jury to think if they see that the defendant is being represented by a law student or representing himself? Isn’t the obvious conclusion in such a system that the experienced lawyers thought he was guilty? There is a huge risk of bias here.

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[...] Taxpayer-funded defense is one of the few legitimate "subsidies" we have; the guarantee of a fair trial demands it. [...]

Why is it a guarantee of fairness?

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A defendant who is obviously guilty would have a harder time, but he might still get representation from a law student or young lawyer seeking experience or an attorney seeking publicity. In addition, there are also charities like Legal Aid or the defendant can represent himself.

Obvious to whom?

Say that an innocent (truly innocent, not merely technically innocent) is confronted with a good case against him and he is indigent? Should the fact of his indigence lead to not being able to mount a sufficient defense against the charges? This is exactly the situation where a truly innocent but guilty looking party needs all the help he can get. From where shall the help come? Should such a person be represented by a raw beginner when he needs the best possible talent to meet the prosecution's case?

In any case, the question of guilt should NOT be prejudged prior to a trial (that is why we have trials). The only requirement the prosecution must meet is that it have a prima facia case, not a slam dunk proof of guilt. The prima facia case is what leads to the indictment. It takes a trial with proper opposition from the defense to establish guilt (or produce a conviction). Having a good defense is part of the process of properly establishing guilt.

ruveyn

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[...] Taxpayer-funded defense is one of the few legitimate "subsidies" we have; the guarantee of a fair trial demands it. [...]

Why is it a guarantee of fairness?

The right to a fair and speedy trial is guaranteed by the 6th ammendment of the Constitution and supported by the 14th:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
This was intended as a protection against the power of the State to prosecute, with, as Betsy points out, vastly more resources than many individuals who might find themselves accused of a crime. The Founders had the specter of political and religiously-based prosecutions in their experience when they wrote this. It is a fact that such defense can be expensive -- often including the use of expert witnesses and involving the time of a judge, lawyers, bailiffs, stenographers, and many other court and private personnel. If a poor person convicted of a crime were unable to pay for defense, that could be enough to put him away for life on a trumped-up charge. That is not equal protection.

One of the few legitimate functions of the government is the provision of a justice system to properly adjudicate contracts and claims of wrongdoing. Of all the ways in which the government spends our money, I have few complaints about this expense. Of course, given many abuses of the law -- non-objective law like sexual harrassment regulations, or hate speech, or anti-trust regulations, are great examples -- as well as Kantian doubt that requires an open and shut case like OJ Simpson consider the "Martians came down and stabbed her" defense, this bulwark of a free society has become far more expensive and burdensome than it might otherwise be. The solution is not to abandon the protection of the individual against the State, but to reign in the State.

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In any case, the question of guilt should NOT be prejudged prior to a trial (that is why we have trials). The only requirement the prosecution must meet is that it have a prima facia case, not a slam dunk proof of guilt. The prima facia case is what leads to the indictment. It takes a trial with proper opposition from the defense to establish guilt (or produce a conviction). Having a good defense is part of the process of properly establishing guilt.

That’s exactly right, and is also the answer to Cometmaker’s question. It is simply not the prosecution’s job to present facts supporting acquittal - that's the job of the defense. How can a trial be called fair if the defense lacks the ability to present relevant facts to the jury? There are many reasons a defendant might be incompetent to defend himself in court, including lack of education, lack of knowledge of the law, or even poor English. Should we say, it’s your own fault you were convicted because you didn't go to school? Even an educated layman isn't going to produce the same list of evidence that a qualified professional would. That's why if he doesn't think he can present himself adequately, he should be provided with someone who can.

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[...] Having a good defense is part of the process of properly establishing guilt.

That’s exactly right, and is also the answer to Cometmaker’s question. It is simply not the prosecution’s job to present facts supporting acquittal - that's the job of the defense. How can a trial be called fair if the defense lacks the ability to present relevant facts to the jury? There are many reasons a defendant might be incompetent to defend himself in court, including lack of education, lack of knowledge of the law, or even poor English. Should we say, it’s your own fault you were convicted because you didn't go to school? Even an educated layman isn't going to produce the same list of evidence that a qualified professional would. That's why if he doesn't think he can present himself adequately, he should be provided with someone who can.

I don't see how that answers my question. I haven't said that a defendant should defend himself in court despite his incompetence to do so. I have said that it is not taxpayers' responsibility to provide him with someone who can. Also, as a sidenote in respose to a comment made above, a privately paid qualified professional you retain regularly sends an agent, law student or a junior associate to court.

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[...] If a poor person convicted of a crime were unable to pay for defense, that could be enough to put him away for life on a trumped-up charge. That is not equal protection.

Public defenders are frequently able to delve into areas of law that privately-retained defense counsel cannot because the person who can afford to pay for a lawyer privately cannot afford the same legal work that some taxpayer-funded public defender can provide. How is that equal and fair for the person who is not poor?

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----------------

That’s exactly right, and is also the answer to Cometmaker’s question. It is simply not the prosecution’s job to present facts supporting acquittal - that's the job of the defense.

Are you implying that if the prosecutor has exculpatory evidence it is not his obligation to give it to the defense or to the judge?

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It is simply not the prosecution’s job to present facts supporting acquittal - that's the job of the defense.

That's a rather astonishing statement. If a prosecutor had possession of actual hard facts (vs. surmises) which were exculpatory (i.e. which demonstrates the innocence of the accused qua the crime in question) he most certainly has a moral, and I'm pretty sure legal, obligation to present them, and more than that, to drop the case immediately. To claim otherwise would be to treat justice as an amoral cynical power game detached from actual justice, which belongs in the province of dictatorships, not a free country.

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How can a defendant be “obviously guilty” before the facts have been investigated by the attorneys?

The defendant tells his attorney that he did it -- under the protection of attorney-client privilege, of course.

Does a defense attorney get a trial period, over which he gets to start researching and then decide if he thinks his client is guilty (and therefore whether he has a good chance of being paid or not)?

As far as I know, that's how it is done now. An attorney can do some research and decide if he wants to take the case. Also an attorney or a client can sever their relationship if either party wishes to do so.

What is the jury to think if they see that the defendant is being represented by a law student or representing himself? Isn’t the obvious conclusion in such a system that the experienced lawyers thought he was guilty? There is a huge risk of bias here.

I don't think so. Unless the attorney is famous, I don't know that an attorney's qualifications are ever known to the jury. I wouldn't expect thing to be all that different from the way they are now with some people representing themselves and some people having inexperienced, or even incompetent, attorneys.

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Say that an innocent (truly innocent, not merely technically innocent) is confronted with a good case against him and he is indigent? Should the fact of his indigence lead to not being able to mount a sufficient defense against the charges? This is exactly the situation where a truly innocent but guilty looking party needs all the help he can get. From where shall the help come?

It might come from a competent and experienced defense attorney who sees the justice in defending an innocent man and relishes the challenge of a difficult case. Men like that take such cases now when they believe the defendant deserves a better defense than he is likely to get from a public defender.

Should such a person be represented by a raw beginner when he needs the best possible talent to meet the prosecution's case?

If he has a public defender, the odds are that he is represented by a raw beginner rather than the best possible talent. Competent, established defense attorneys can make much more money in private practice, so the P.D. department tends to be staffed with people who aren't there yet.

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Nobody forget the Fifth Amendment!

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is a powerful defense against the government that all too few citizens are unaware of. The short answer is:

DO NO TALK TO THE POLICE! EVER!!!

For detailed reasons why see

and
.

This is why the 5th amendment precedes to 6th.

And it's food for thought on the notion that the government owes recompense to the falsely accused given it's hand is so tied in the face of the silence of the falsely accused. Think Sir Thomas More ... in traffic court. That's our daily reality. Or at least what it ought to be.

PS to mods: please delete my previous post. I posted it by accident.

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If the purpose of government is to uphold the law, and bring to trial those it suspects, why shouldn't the whole trial be funded by government? Why just the prosecution? If one must pay for one's defence, then why not be forced to pay for one's prosecution?

The average man cannot be expected to be able to know the law well enough for his defence, and assisting him with tax payer funded knowledge seems a legitimate use of funds to me. The funds are not a gift to the man, but an expense of maintaining the law IMO.

If one is found guilty, then I think a case could be made for him to pay for all costs of the trial, prosecution included. The very least should be what Betsy suggests, to have costs paid if found innocent. This way the guilty pay for the justice system, not the innocent.

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That's a rather astonishing statement. If a prosecutor had possession of actual hard facts (vs. surmises) which were exculpatory (i.e. which demonstrates the innocence of the accused qua the crime in question) he most certainly has a moral, and I'm pretty sure legal, obligation to present them, and more than that, to drop the case immediately. To claim otherwise would be to treat justice as an amoral cynical power game detached from actual justice, which belongs in the province of dictatorships, not a free country.

Yes, but he is not looking for exculpatory evidence. We're working within an adversarial system. The jury is presented with evidence through the work of the prosecution and defense, each trying to make the best case for their client. If you're depending on evidence you receive from the prosecution, you're only putting yourself at a disadvantage. That's why having a defense lawyer is so important.

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The defendant tells his attorney that he did it -- under the protection of attorney-client privilege, of course.

Ok, and that's the attorney's prerogative. However, short of guilt by admission it is the jury's role to decide guilt or innocence, and the system should not be discouraging the defense from making a case just because they believe their client is guilty. Couldn't they be wrong? If your idea was implemented and a defense attorney would need to obtain reimbursement from their broke client if found guilty, then suspicion of guilt would bias their decision based on financial concerns. I see no reason to compound an already difficult dilemma with matters unrelated to the fate of the accused.

As far as I know, that's how it is done now. An attorney can do some research and decide if he wants to take the case. Also an attorney or a client can sever their relationship if either party wishes to do so.

It is not how it is done now, because the apparent guilt or innocence of the client does not now impact the defense attorney's ability to be compensated for his services. Yes the attorney and client are free to work or not work with each other, but payment and guilt are completely separate issues that don't influence each other. That's the way it should be in my view.

I don't think so. Unless the attorney is famous, I don't know that an attorney's qualifications are ever known to the jury. I wouldn't expect thing to be all that different from the way they are now with some people representing themselves and some people having inexperienced, or even incompetent, attorneys.

Fair enough. My concern about this may be unwarranted.

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I don't see how that answers my question. I haven't said that a defendant should defend himself in court despite his incompetence to do so. I have said that it is not taxpayers' responsibility to provide him with someone who can. Also, as a sidenote in respose to a comment made above, a privately paid qualified professional you retain regularly sends an agent, law student or a junior associate to court.

Isn't preventing wrongful conviction one of the responsibilities of government? Or is the state's job only to go around accusing people of things, and if those people can't defend themselves they must be guilty?

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That's a rather astonishing statement. If a prosecutor had possession of actual hard facts (vs. surmises) which were exculpatory (i.e. which demonstrates the innocence of the accused qua the crime in question) he most certainly has a moral, and I'm pretty sure legal, obligation to present them, and more than that, to drop the case immediately. To claim otherwise would be to treat justice as an amoral cynical power game detached from actual justice, which belongs in the province of dictatorships, not a free country.

Yes, but he is not looking for exculpatory evidence. We're working within an adversarial system. The jury is presented with evidence through the work of the prosecution and defense, each trying to make the best case for their client. If you're depending on evidence you receive from the prosecution, you're only putting yourself at a disadvantage. That's why having a defense lawyer is so important.

A prosecutor is supposed to be objective and evaluate the evidence for what it is: either exculpatory or indicative of guilty. He does not get an indictment just because the police made an arrest.

Considering the fact that one is innocent until proven guilty, how would one not depend upon the evidence provided by the prosecutor who must provide positive evidence that the defendent is guilty. The defense need not prove the innocence of the defendent. There is no requirement that a defendent put on ANY positive defense whatsoever. All that need be done is to poke enough holes in the prosecution's case to create reasonable doubt.

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Yes, but he is not looking for exculpatory evidence. We're working within an adversarial system.

Yes, I know - I have to point out that that's obvious. But when you said:

It is simply not the prosecution’s job to present facts supporting acquittal - that's the job of the defense.

there was a possible implication that it was somehow proper and permissible for the prosecution to withhold exculpatory facts in its awareness from the defense, and it certainly is not. Again, if "adversarial" means the prosecution can somehow conveniently ignore such facts that come to its attention, then the process is no longer justice, but statist railroading for the sake of power lust.

A prosecution that knowingly withheld exculpatory evidence that helped in wrongly convicting a man should themselves be held personally responsible for a grave criminal act, in addition to civil damages.

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Yes, but he is not looking for exculpatory evidence. We're working within an adversarial system.

Yes, I know - I have to point out that that's obvious. But when you said:

It is simply not the prosecution's job to present facts supporting acquittal - that's the job of the defense. I merely understood bborg's comment to refer to the division of labor, not the burying of exculpatory evidence. The Prosecution has a full-time job determining, through depositions and review of evidence in discovery of determining if it has a prosecutable case and then it must assemble that case. The Defense's job is to not only review all of that evidence, but to either establish the invalidity or other credible interpretation of that evidence that exonerates the defendant, or to impeach the methods by which the arrest or the gathering of evidence and/or testimony was done if it compromised the rights or due process of justice for the defendant.
I took bborg's comment to mean that the Prosecutor must objectively look at all evidence and only prosecute a case in which he thinks he has one, but is not obligated to play devil's advocate with himself and fight the defense's case for them. I would hope that an honest Prosecutor would abandon prosecution of a case in which he found evidence exonerating the defendant. I'm not a lawyer, but I've certainly heard of such situations. I think the Duke Lacrosse Case (2006) is a good example of what happens when a prosecutor evades evidence that conflicts with his case: Durham District Attorney Mike Nifong lost his career and his right to practice law as a result. Justice was served.

[note: post was edited to clean up incorrect quote placement]

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All that need be done is to poke enough holes in the prosecution's case to create reasonable doubt.

Which you may need to do with the use of evidence contradicting the prosecution's case (e.g. physical evidence or witness testimony). You also have to cross-examine witnesses who have been coached on what to say, to expose doubt or contradictions. And you need to be familiar with court procedure and object when something going on is improper - such as whether an attorney is leading the witness or going on a tangent (relevance). I've only been to one trial, and it was civil, but you see quickly that an attorney has to stay on his toes and know his way around to make his case. It's easy to say that the burden is on the prosecution, but that doesn't mean you can rest on the evidence he gives.

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