Betsy Speicher

Should the government pay for criminal defense?

35 posts in this topic

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.

Alan read my comment correctly. I was only referring to the fact that there is a division of labor within our system and it would be a mistake to think that the jury would be exposed to all the relevant facts of a case without the active participation of the defense. After all, the jury will get no exculpatory evidence from the prosecution.

Still, I think it is unreasonable to assume a system without some corrupt members, which is why ours was designed with so many controls. Even with those controls, corruption is a problem. Short of corruption you still have the danger of errors or incompetence. Designing a good system can't involve assuming the honesty or infallibility of all involved, which is what you and others here seem to be doing.

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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?

How does a man judge whether a lawyer is competent to represent him on his particular legal matter? Some people judge by certain elements of merit, some by the mere fact the lawyer represented a family member, some by the fact the lawyer is a spinto tenor. Is it not a man’s right to make that judgement? The root of the Sixth Amendment right is to remove prejudice. However, the recent decisions in favour of state funding is not a method that removes prejudice against a defendant since PD systems ensure a defendant has counsel irrespective of the merits and schedule of any particular counsel for any particular case. A claim of need for state funding here is no different than a claim of need for Medicare, in the name of preserving a "right".

There are errors of law and problems with law enforcement systems which cannot be fixed by state funding for representation by counsel. The government should protect the right of a defendant to select a counsel of his choice to ensure a fair trial (or in many cases, fair pre-trial resolution), and that is an agreement between the defendant and a counsel, without a third party unless the defendant is incompetent.

Even if a government were to fund a public defender system with lottery funds rather than taxpayer dollars, I would not support a public defender system because the government has the responsibility to afford a defendant the opportunity to seek means to defend himself. "To seek" means using his right (inalienable) to retain a counsel by an individual’s agreement with that counsel on how and when that counsel will be compensated for legal representation, and to raise funds by any legal method he wishes. Also, I know of no solid empirical data to conclude that a defendant's failure to retain counsel on any criminal charges - be they misdemeanors or felonies - has a negative impact on the outcome of his criminal matter. But I do know of empirical data that self-representation is not disadvantageous [LINK].

"the data demonstrate that defendants who choose to proceed pro se in felony cases do not necessarily suffer negative consequences from that decision. Although pro se defendants make different choices than their represented counterparts (for instance, a higher percentage of pro se felony defendants go to trial than represented felony defendants), pro se defendants do not fare significantly worse in terms of outcomes than their represented counterparts. Indeed, at the state court level, felony defendants representing themselves at the time their cases were terminated appear to have done better than their represented counterparts in that they were less likely to have been convicted of felonies. Second, the vast majority of pro se defendants do not exhibit overt signs of mental illness. Of the over two-hundred felony pro se felony defendants in federal court that I studied, competency evaluations were ordered in just over 20% of the cases.10 This figure is telling because in virtually every case in which a defendant manifests any sign of mental illness, a federal district court judge will order a competency evaluation.[FN]"

Unless a Forum member wishes to claim that it is not a man's right to choose to be self-represented by an appropriate counsel and not just any counsel, I am not seeing how one could say the Sixth Amendment right can be protected by the removal of the right to choose or judge appropriate counsel for oneself through the public defender system. The bad law promulgated by the courts simply allows both the defendant and the state to evade their respective rights and responsibilities.

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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.

Whether the government should pay for criminal defense is complicated, but as a criminal defense attorney, I can answer this. First off, my answer has to be in the current context. A context in which government is only based on LF and Individual Rights would change the answer somewhat. This is a work in progress of mine and I cannot fully answer it without the full context of my legal theory.

Under the current system, it is a mistake to have the loser pay. Why? Because the standard of proof in a criminal proceeding is "Beyond a Reasonable Doubt". As a result, for example, Simpson was acquitted in his murder trial, and found liable in a later civil one, where the standard was "Preponderance of the Evidence". In a criminal matter, a finding of "Not Guilty", based on a failure of sufficient evidence, is emphatically NOT a finding of innocence. Moreover, by definition, if a defendant cannot afford a lawyer, he sure cannot afford to pay the cost of prosecution. So if the loser is the People, and the defendant is guilty as hell, would that be right?

There is no question in my mind that where the goverment has all the power necessary at its command, that the very least it should do is pay for a defense. If this were not true, a prosecutor could file cases poorly supported by law, and, if supported by a biased judge, the indigent and ignorant defendant would have no way to defend himself. (The leading case on this is the subject of "Gideon's Trumpet", a popular book published around 1966. ) We defense attorneys, and the Plaintiffs' attorneys on the civil side, are a key if not THE key players in protection of what is left of individual rights in this country. The current movements to shackle PI lawyers and to "not coddle criminals" is a violation of everyone's rights, and can lead directly to a police state--no due process, no trial, or none that matters. (For details, you need not look at the USSR or Nazi Germany; look at the proceedings of any regulatory agency). I beg of anyone not to shackle attorneys, even if you feel their positions are often unjust. The issue of constitutional rights and procedures far outweighs that. Once we are shackled, that will be the end of the rest of our freedom to seek legal redress.

When I am appointed to represent a criminal defendant, I am paid significantly less than I would get if privately retained. Moreover, at the conclusion of the proceeding, regardless of outcome, the defendant is required to reimburse my services, where able. I really see no alternative in today's context, despite the fact that the court appointed system has effectively destroyed the Criminal Bar, by socializing the process.

One answer however, as an aside, is to shorten sentences for payment, or allow outside work for the same reason--in the right kinds of cases. Also, by law, a criminal is not allowed to write a best seller and profit from it if convicted. I disagree. Let him profit, and take the profits to pay for the ENTIRE cost of his trial and encarceration. This is a no brainer. His encentive? He keeps a small portion for himself or his family.

Under a proper system, I see no reason why one would not have insurance for defense. Yes, I know. None of us honest citizens are EVER going to be arrested for a crime. Think again! But still, it would be so infrequent as to make it a $5 yearly rider (or even much less) on your homeowners or renters insurance. Of course, the real criminal types wouldnt buy that insurance, so how would it be paid for? No taxes, right? In the old days, family would pay sometimes. I think the rest would have to be paid for by whatever funds are used to fund the courts and police, as part of the process--not to altruistically defend someone--guilty or innocent--but to protect our Constitutional process, and to be as sure as possible justice is done. In that connection, perhaps the insurance you have would include a small additional sum for just this purpose: if others' rights are protected, then so are yours.

Bottom line is: Justice requires protection from the misuse of government power. We need independant attorneys, appointed if necessary, to assure this protection. And this protection is for all of us.

William W. Kaufmann

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Under a proper system, I see no reason why one would not have insurance for defense.

Does such insurance exist? If not, why not?

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Under a proper system, I see no reason why one would not have insurance for defense.

Does such insurance exist? If not, why not?

I have never heard of such a thing, but it might exist. There is a Multi-Level-Marketing company called Pre-Paid-Legal that allows a person to join and pay a monthly fee which gives them access to a lawyer or lawyers as one's needs demand. I do not know how good the company is as I have not checked it out that thoroughly, but I did have a client that was a lawyer and part of the company.

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Under a proper system, I see no reason why one would not have insurance for defense.

Does such insurance exist? If not, why not?

Civil liability, including attorney's fees if sued, are covered up to a certain amount in my homeowner's insurance policy. In addition to that, I have an umbrella policy that covers an additional $2 million in civil liability. I'd be quite willing to pay for criminal liability insurance too. If it doesn't already exist, there's an opportunity for an enterprising entrepreneur.

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Under the current system, it is a mistake to have the loser pay. Why? Because the standard of proof in a criminal proceeding is "Beyond a Reasonable Doubt". As a result, for example, Simpson was acquitted in his murder trial, and found liable in a later civil one, where the standard was "Preponderance of the Evidence". In a criminal matter, a finding of "Not Guilty", based on a failure of sufficient evidence, is emphatically NOT a finding of innocence. Moreover, by definition, if a defendant cannot afford a lawyer, he sure cannot afford to pay the cost of prosecution. So if the loser is the People, and the defendant is guilty as hell, would that be right?

There is no question in my mind that where the goverment has all the power necessary at its command, that the very least it should do is pay for a defense.

The question is: What kind of defense and who should decide? I think it should be up to the defendant and anyone willing to represent him rather than the state choosing the attorney and the amount and terms of his compensation. If the state loses, I think it reasonable that there might be a limit on how much they would pay for the defense, but it should be in line with the going rate for such legal services. If the defendant opts for a higher-priced defense, that is his choice and his cost.

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Under the current system, it is a mistake to have the loser pay. Why? Because the standard of proof in a criminal proceeding is "Beyond a Reasonable Doubt". As a result, for example, Simpson was acquitted in his murder trial, and found liable in a later civil one, where the standard was "Preponderance of the Evidence". In a criminal matter, a finding of "Not Guilty", based on a failure of sufficient evidence, is emphatically NOT a finding of innocence. Moreover, by definition, if a defendant cannot afford a lawyer, he sure cannot afford to pay the cost of prosecution. So if the loser is the People, and the defendant is guilty as hell, would that be right?

There is no question in my mind that where the goverment has all the power necessary at its command, that the very least it should do is pay for a defense.

The question is: What kind of defense and who should decide? I think it should be up to the defendant and anyone willing to represent him rather than the state choosing the attorney and the amount and terms of his compensation. If the state loses, I think it reasonable that there might be a limit on how much they would pay for the defense, but it should be in line with the going rate for such legal services. If the defendant opts for a higher-priced defense, that is his choice and his cost.

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The kind of defense and all the rest is already set up, and provided by Public Defenders and Court Appointed Attorneys An attorney is assigned an attorney properly qualified for his case. Under the law the defendant may at any time hire his own attorney, represent himself, or continue with the appointed one. If he is found able to pay for counsel, he doesn't get an appointed one. At the end of the case, win or lose, the defendant may be assessed for repayment of costs of his defense. It is usually far lower than paying for private counsel up front. As far as paying for the costs of prosecution, it better come from honest gain. Not likely in most cases. And of course you can make the same case for paying the costs of the punishment too. Fat chance.

William W. Kaufmann

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yeah, right, ask the GOVERNMENT to give someone money, at gov't expense, after the gov't wasted a bunch of time and money convicting an innocent man. That's gonna fly really well. If they could be trusted with such a thing, there'd be no convictions of innocent men, but DNA testing has PROVEN that many innocent men are convicted. Especially of rape.

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