That’s the lesson of United States v. Wilson, handed down today by the Sixth Circuit in an opinion by Judge Sutton. A public defender was appointed in the defendant’s case based on his perceived inability to hire his own lawyer. But near the end of the trial, the district court learned that the defendant was not exactly indigent:
[T]he court learned that Wilson had been staying at the “historic Brown hotel” in downtown Louisville throughout the trial, at a cost of roughly $10,000, after turning down the government’s offer of free accommodations. R.229 at 5. Further inquiry revealed that, by early 2007, Wilson was not a traditional candidate for free legal services: His income in 2007 totaled roughly $134,000; he lived in an exclusive section of San Francisco, where he paid $2,300 per month in rent; he has no dependents; his discretionary income in 2007 allowed him to spend at least $18,000 on the kinds of restaurants and wineries not known for catering to indigents; and Wilson’s friends had created a $44,000 fund to pay for his legal services in the case.
The district court ordered Wilson to pay for the cost of the public defender’s services:
Recognizing that this was not the type of person Congress had in mind when it authorized the government to provide legal services to indigent criminal defendants, the district court was not pleased. After further factual investigation, it ordered Wilson to pay $52,305 in “reasonable monthly payments” for the costs of the public defender’s services.
The Sixth Circuit upheld the order, writing, “Happily for Wilson, the fee was worth it, as he was acquitted on all charges. Unhappily for Wilson, the district court did not abuse its discretion in ordering him to pay for the representation.”
As an aside, I wonder how the defendant paid for the attorney who represented him in the appeal arguing that he couldn’t afford an attorney.
Downfall says:
This represents a big flaw in our system: After taxes and even basic living expenses, the lawyer is going to cost him a year’s income. The state has taken away a year of this man’s earnings by pursuing a case it couldn’t prove, not even factoring in the related costs, taking time off work, stress, etc. It seems that, to curtail state abuse, the public defender should be available to all members of the public.
March 1, 2010, 2:30 pmPatHMV says:
One judge I practiced in front of while an ADA had once been a public defender herself, so she knew all the dodges. She would quiz the defendants asking for a free lawyer pretty intensely about how they obtained the “grills” on their teeth, the brand-new tennis shoes on their feet, and the designer-label shirts on their back. In the end, she would usually appoint the PD’s office, but she would also order the defendant to pay a certain amount to the PD’s office for that representation.
How did this person ever get appointed counsel anyway? Did he make full disclosure on the form required to request a PD? In other words, did he lie about his assets and income, did nobody bother to ask the right questions about his assets and income, or did a judge or some other official make a horrendous mistake by authorizing free counsel even knowing those facts about his assets and income?
March 1, 2010, 2:35 pmAnonsters says:
Except that public defenders are already massively underresourced (underfunded, understaffed, etc.) Although in principle I think I agree with your sentiment (although I hasten to add that I may not if I thought about it more, but at first blush it appeals to my liberal sympathies), in practice it would be a disaster, at least if legislatures don’t provide adequate resources.
March 1, 2010, 2:36 pmDisagree says:
I’m not sure I agree with this conclusion. Something tells me he was not living in an “exclusive” portion of San Francisco if he was paying only $2,300 a month in rent. That’s not nothing, obviously, but it’s not incredibly expensive for San Fran. Also, while 130k for a 2007 salary is a lot of money, it’s not a ton for San Francisco and it would be incredibly costly to hire an attorney for a six-week trial. Further, his hotel bill (the 10k) was not footed by him but his friends, who had set up a trust fund for the trial. He also had massive liabilities that would engulf most of his salary. Finally, while he is dinged for his massive dining expense, I wonder if some (maybe a lot) of that is for business dinners.
Obviously, it’s obnoxious for a public defender’s office to have to defend some rich dude who can afford to hire his own lawyer. But I’m not entirely sure that’s what happened here, and I think we should err on the side of appointing the public defender’s office.
Indeed, in this case, this guy will have to spend 50k defending himself for charges the Government could not prove. Why should he foot that bill?
All that said, perhaps I just have a different view of when someone’s entitled to a public defender than Congress did when they draft the statute.
March 1, 2010, 2:43 pmDownfall says:
Anonsters: If the states were obligated to provide public defenders to all who wanted them, they would either have to fund the P.D. office adequately or face speedy trial and other due process challenges. Of course, now that I think about it, the biggest lobbyists against this might be private criminal defense attorneys…
PatHMV: All of that is laid out in the opinion. At the time of determination, the defendant was in prison serving a different sentence not making any money. He started making bucks once he got out of prison due to his expertise in antique weapons. Based on his spending and stated income, it certainly sounds like he has “off the books” income as well, although the court doesn’t come out and say that.
March 1, 2010, 2:44 pmOrin-fan says:
Orin:
“As an aside, I wonder how the defendant paid for the attorney who represented him in the appeal arguing that he couldn’t afford an attorney.”
Judge Sutton asked that question at oral argument. To which the attorney responded that he was essentially taking the case on pro bono because of how outraged he was at it. Judge Sutton, of course, later thanked him for his service in this matter.
March 1, 2010, 2:47 pmTRE says:
Scholarships and grants probably have the same problem. Feds or Uni don’t know what kind of money you “really” have at your disposal for an education. You might not even know. I’m sure rich people are gaming that to “steal” need based scholarships as well.
March 1, 2010, 2:47 pmDisagree says:
Downfall, this is a federal case, so the defendant received a federal public defender. Federal public defenders do not face the huge funding problems that state pds face. (That’s not to say they aren’t underfunded. But merely that the funding issue isn’t nearly as pressing at the federal level that it is at the state level.)
March 1, 2010, 2:48 pmAnonsters says:
Well, in that case (adequate funding and staffing and other-resourcing of PDs at the risk of having prosecutions junked for constitutional violations), I’m all for it.
March 1, 2010, 2:48 pmRowerinVA says:
I nominate this sentence for the Green Bag’s great legal writing award:
More seriously, I have observed that judges vary greatly in their interest in looking out for the taxpayer on this issue. Insulated as they are from financial considersations, most judges, in my experience, don’t require any real showing before the PD is appointed. Even when the defendant was caught driving his own Escalade ….
The cost of defending oneself is scandalously high. But so is the cost of everything else. There’s no good solution to it. I would not be opposed to an automatic loser-pays rule for prosecutions in which the prosecution is found to be frivolous, but there are many objections — including incentives problems — to forcing prosecutors to pay when the only cause of the loss is that they can’t quite convince a jury of the high beyond-reasonable-doubt standard. Remember, false negatives have a high cost to society here. Not just false positives (although those are also high).
March 1, 2010, 2:51 pmOrin Kerr says:
Orin-fan,
Ah, thanks. Good for the attorney — and also for Judge Sutton for thanking him.
March 1, 2010, 2:55 pmAnonsters says:
I wonder whether the costs of defending oneself would be so high if, for example, law school didn’t cost so much money. Perhaps it’s because I go to an extremely liberal law school, but I know plenty of people who would happily forgo large salaries in order to provide legal services to folks. If only they/we could afford it. And most of us really, really can’t. (And some of us are forming a club for those people who can accrue $1 million in educational debt. LLM & SJD programs, here we come!)
One of my professors wrote a paper about “middle-income” lawyering. It is a problem.
March 1, 2010, 2:59 pmDjDiverDan says:
Shame on the guy for lying about his inability to retain a lawyer. Shame on the District Court and the 6th Circuit for nailing him with a $52,000 “fine” for defending himself against a criminal charge the Federal Government was unable to prove. I make a very good living, but if I had to defend myself against a Federal Criminal charge, I’d be very hard pressed to come up with a $50,000 (or more) retainer most decent private criminal lawyers would demand, and if I did, getting acquitted wouldn’t ease the financial hardship that the Government was able to impose. I suggest that all criminally accused suspects who obtain acquitals should get a Tax Credit (NOT a deduction, a credit) for all costs of defense incurred in getting the acquital.
March 1, 2010, 3:18 pmtheobromophile says:
Rather than making PDs free to all (or low-cost to all), why not pay private attorneys (criminal defence, litigators, part-time moms, or whomever wants to do it) for part of it, and let the client pay the other part? Rather than getting a bunch of official PDs, you could just have the government pick up part of the check for private people to do it. In fact, one really good way to get private attorneys to pick up PD time would be to cut their student loans in return.
March 1, 2010, 3:28 pmDave N. says:
The problem, of course, is that someone may be able to afford an attorney for some kinds of charges and not be able to afford one for others.
If I were charged with DUI (a neat trick since I don’t drink), I would likely find the money to hire a top DUI defense attorney to represent me.
On the other hand, if I were charged with murder or something similar, I would very likely be “indigent” for appointment of counsel purposes, even though I make over $100k a year.
To use a “real life” example, a Nevada brothel owner and Hells Angel (whom I would assume would have access to money), had a deputy federal public defender as his counsel when charged with possession of child pornography in Wyoming.
Finally, I would note that public defenders suffer in perception largely because they are “free.” I have chuckled more than once when a criminal defendant, assigned a top-notch public defender, then hired an attorney with less skills and “fired” the public defender. These defendants actually thought they were improving their case by doing so.
Frankly, public defenders range in skill like all other lawyers do — some are great, some are average, some are mediocre. But most of the time the public defenders, as a group, are as good as, if not better than, their private practice counterparts.
March 1, 2010, 3:44 pmDavid M. Nieporent says:
The issue is not whether he’s “rich”; the relevant statute does not provide for taxpayer-funded defense for everyone who isn’t rich. Rather, the issue is whether he’s indigent. And granted all your caveats, there’s no question that someone making $130K in a single year is not indigent.
That’s a policy question to address to Congress. However, given that Congress has set a particular policy, there’s no reason that this guy should be the exception.
March 1, 2010, 3:49 pmSteve says:
Yeah, the government really should have had to pay OJ’s defense costs after he got off.
March 1, 2010, 3:51 pmJeff Hall says:
Nobody has accused him of lying about his finances; read the opinion.
This is a great idea.
March 1, 2010, 3:53 pmLaura Victoria says:
The law in Colorado is whether as a “practical matter” someone has the funds to hire counsel in a particular case. In Colorado, they have guidelines that state a single person has to earn less than $12k per year. Yet these guidelines are treated as prohibitions by many Colorado judges. I know of a misdemeanor case where the defendant had exhausted his resources after spending over $150k in legal bills. The defense counsel was allowed to withdraw while being owed an additional $100K in legal bills.
At this point, the recession had hit big time and the defendant showed he was making zilch as a Realtor. The defendant’s sole asset was his personal residence, valued at about $220K, but not really marketable in a second home ski town. Then, the judge suggested that this individual could “partially liquidate” the home, whatever that means–turning it into a timeshare or something (this is the problem with judges who know nothing about the real world and have only worked as DAs).
Why did a misdemeanor become so expensive? Because it doesn’t take two to tango in a prosecution, it only takes one vengeful DA with unchecked power. The DA opposed every discovery request and told the defense to move for an order to compel. The prosecution sought motions for reconsideration of every single ruling they lost on. The judge dumped one charge; the prosecution appealed, etc. etc. When asked how much he’d spent on this prosecution, where four separate sanctions were levied against the DA, he responded that because they don’t bill hourly the way many private lawyers do, he had no way of keeping track of what his office spends on any particular case.
Who is this DA? Why he’s Mark Hurlbert of Kobe Bryant infamy, and is now running for state Senate in Colorado after failing to gain term-limit extensions on the ballot. Check out the YouTube Hitler spoof video about him here, from this piece in the Denver Post.
http://blogs.denverpost.com/thespot/2010/02/26/colorado-state-senate-race-latest-in-a-line-of-hitler-spoofs/
It’s hilarious, particularly if you’re into Colorado politics.
March 1, 2010, 4:06 pmrequired says:
I see no indication in that Wilson ever lied about his ability to afford a lawyer, the closest we can come to that is an implication from his 2008 hearing that he stated he overestimated his earning potential at his 2006 arraignment when he stated he expected to be be capable of retaining his own attorney after being released from prison.
The issue in this case appears to be that Wilson never asked to be represented by the PDs office (at the 2006 arraignment he stated he wished to hire counsel, not to have one appointed), tried to replace the PD lawyer with one he would pay for himself but was denied (the November 2008 pre-trial hearing) and finally was forced to pay for a lawyer which he didn’t ask for and didn’t want.
March 1, 2010, 4:14 pmKevinM says:
There is a notch effect. If your means are modest, you may be far better off with the public defender than you’d be with any lawyer you can afford. So this guy probably did well for himself – the results certainly suggest that he did.
Re your question about paying the appellate lawyer.
March 1, 2010, 4:17 pmOne is reminded of one of the classic examples of “chutzpah” (which, like all Yiddish words, is explicated rather than defined): The guy who takes a limo to bankruptcy court and brings the driver in as a creditor.
Roscoe says:
I have seen this happen more than once. I had a case where a small time drug dealer was assigned a panel attorney (used where the PD is conflicted out) from a big firm. The panel guy was one of the top criminal lawyers in town, who was on the panel so he could get some trial experience for younger associates. The defendant was in the process of hiring some guy with no federal experience at all when he figured it out. Needless to say the case was hell for me, as I got papered to death.
March 1, 2010, 4:21 pmAllan says:
The rule should be that the defendant’s lawyer should receive the same amount as the prosecutor (including the prosecutor’s overhead) and, perhaps 50% of the amount for investigation. That is especially so for those who are acquitted. Perhaps we need an EAJA for criminal defense attorneys (without the substantial justification standard). Basically, if there is an acquittal, the state pays for all legal fees up to the amount the state spent to prosecute and 1/2 of the amount the state spent to investigate.
I am also concerned about those who are jailed and cannot post bail during their incarceration (perhaps because the government has frozen their assets).
March 1, 2010, 4:25 pmPersonFromPorlock says:
The obvious solution is for the Bar Association to ‘tax’ established lawyers and pay off the educational loans of new lawyers, who in turn will be ‘taxed’ to pay off the loans of newer lawyers yet, and so on. This will let new lawyers charge clients less without running afoul of their loans, and older lawyers charge clients less without undercutting their newer colleagues. As it is, older lawyers have to charge as though they were still paying off their own educational loans throughout their careers, lest their newer colleagues suffer.
(This would also work for Doctors.)
However, for various reasons which will surely seem good to the legal community, don’t hold yer breath. ;^)
March 1, 2010, 4:38 pmPintler says:
I’m curious – how many criminal cases have public defenders vs. private attorneys? From my limited exposure as a juror I have the impression that PDs (more specifically, attorneys being publicly paid) are the vast majority (with perhaps exceptions for some kinds of cases, like DUIs). Perhaps it varies between courts (regions, state, federal, municipal, superior)?
You’d almost think crime didn’t pay :-)
March 1, 2010, 4:51 pmanonymous says:
A rule requiring the government to pay the legal bills of all acquitted defendants would have predictable and perverse consequences; prosecutors’ offices would be deterred from bringing all but the most airtight cases, and decline to prosecute many other cases that should be prosecuted. Many a criminal prosecution falters because the prosecution’s case, although easily tending to show the defendant’s guilt by preponderance of the evidence, falls short of beyond-a-reasonable-doubt. Defendants who are acquitted this way have received a windfall; this may be a necessary consequence of a rule that tries to protect the innocent even at the considerable cost of freeing the guilty, but it’s a windfall nevertheless. It doesn’t follow from the fact that a jury ultimately acquitted, that the prosecution was never justified to begin with.
Congress has, in any event, created a fee-shifting statute for defendants who can prove that the government’s case wasn’t substantially justified. One can argue about whether Congress drew the line in the right place and whether the courts are interpreting the statute as Congress intended, but it strikes me that drawing hte line at “not-substantially-justified” makes a whole lot more sense than jumping from “the jury acquitted” to “that must mean that the government unjustifiably prosecuted an innocent person.”
March 1, 2010, 4:53 pmpublic_defender says:
Our bean counters have said that it can cost more money to screen for PD eligibility than we save by weeding out the few ineligible people.
Getting indigency documents together can be a real pain. It can also take a lot of time and money. Asking us to verify and monitor indigency could easily cost us more than it saves.
As to this case, it appears that this guy was honest that he had no money initially but that he would have access to money around the time of trial.
And let me brag a little. This case is one example of the reality that in most criminal cases in most places, you are better off with a public defender than with a private lawyer or court-appointed lawyer.
March 1, 2010, 4:54 pmMike McDougal says:
I’d be happy with a system under which the government would have to pay the attorney’s fees for defendants against whom they do not prevail. Are there complexities involved? Sure. But parties deal with them routinely in civil matters.
March 1, 2010, 5:10 pmMike McDougal says:
“Reasonable doubt” would be enforced on the front end. What is the benefit in financially destroying middle-class people who are acquitted?
March 1, 2010, 5:12 pmSenator Christmas says:
Could one give the jury (of the original trial) the power to force the defense to be reimbursed? The equivalent of “not guilty, and you’ve wasted our time.”
March 1, 2010, 5:29 pmruuffles says:
Scots law’s “not proved” comes in handy. Going along with the “reasonable doubt” comments, “not guilty”=reimbursed, “not proved”=not reimbursed.
March 1, 2010, 5:32 pmpete says:
I agree with the others who think the non-indigent should be entitled to a public defender and I would include even the rich in that. The benefit of not bankrupting or financially exhausting potentially innocent middleclass and upper middle class people and protecting civil rights is worth the minor increase in costs to the government.
Although in general I think it is a bad idea for not guilty to equal getting your court costs covered. If you have a case where you can show misconduct or a “you’ve wasted our time verdict” I would be fine with awarding at least some fees.
March 1, 2010, 5:40 pmAnon321 says:
A number of commenters seem to assume that any defendant with a court-appointed attorney necessarily has a public defender. Not so. At least here in the SDNY, most defendants with court-appointed counsel are represented by lawyers on the CJA panel, which is composed largely of lawyers in private practice who receive government funds for their work, pursuant to the Criminal Justice Act (though some lawyers forgo those fees and do the work pro bono). The quality of the CJA lawyers is pretty variable. Based on the luck of the draw, a defendant could get either (a) a partner at Sullivan & Cromwell or Davis Polk who spent 10 years as an AUSA and wants to keep his hand in criminal trial work (or, at least by an associate supervised by that partner), or (b) a solo practitioner who depends on CJA appointments to keep the lights on. That said, CJA lawyers are generally quite good. But I thought it was worth clarifying that a court-appointed, government-funded lawyer could very well be a private practitioner, rather than a federal public defender.
March 1, 2010, 5:42 pmtvk says:
Orin, this is an extremely interesting case, but I think you are misrepresenting it a little. It seems clear that the guy really was indigent when he was initially represented by the public defender, and was fully upfront that he expected to make a lot of money going forward once he got out of prison. In short, no one lied. Nor was it a “perceived” inability to hire a lawyer when the public defender was first appointed.
I admit that it is tight-fisted to refuse to repay the government once you are rolling in dough, but that is an entirely different story. The lesson of the case is not that public defenders are for the indigent–at the time, the defendant was indigent. The lesson is that if you get a PD and then win the lottery, you really should pay the government back.
March 1, 2010, 5:45 pmSenator Christmas says:
I rather like the “not proven” verdict.
Should this theoretical “you’ve wasted our time” verdict also include making the jury financially whole?
March 1, 2010, 5:49 pmTatil says:
Prosecution knows beforehand that the standard is “beyond a reasonable doubt”, not “preponderance of evidence.” If they are already taking on many cases without enough evidence, they must be deciding that these prosecutions are worth taxpayer money to pursue through the cost of DA’s office. We would be increasing the cost of these cases, sure, but the difference is matter of degree, not kind. Overall I don’t think it would result in a night and day difference.
March 1, 2010, 5:58 pmShelbyC says:
Why? The defendant didn’t make the govt charge him.
March 1, 2010, 6:03 pmMike says:
This case illustrates why there should be a Universal Public Defender.
I make a nice living and do not live a self-indulgent lifestyle. My car is an ’01 4-door that has a bluebook value of maybe $3500. That said, I could not afford $50 to hire a lawyer.
I’d have to cash in my 401k; put my student loans on forbearance; and beg my friends and family for help. All so that, like the guy here, I could be acquitted.
America has waged a war on the Middle Class. If you’re super rich, you’ll get bailouts when you make bad stock market bets. If you’re poor, you’ll get a public defender. If you’re Middle Class…You’ll just barely get by.
March 1, 2010, 6:11 pmanonymous says:
Because there’s no way to know ex ante — at “the front end” — what the twelve individuals ultimately selected for jury duty are going to make of the evidence that’s presented to them. (Moreover, the premise that it’s always, or even consistently, easy to predict before the trial how the case presented at trial is going to look is unrealistic. I assume that most veteran trial attorneys would agree that the case “at the back end” frequently looks different, often substantially so, from the way the case may have looked to both sides “at the front end.”)
March 1, 2010, 6:40 pmohwilleke says:
Sounds merciful under existing law.
Then again, it isn’t obvious why someone should be required by the state to pay $53,000 give or take, for the privilege of being charged, tried and not convicted in a six week criminal case. Some states allow for at least partial attorney fee reimbursement for criminal cases resulting in complete acquittals and this is a salutory practice that probably does more benefit for due process than many less august constitutional rights.
March 1, 2010, 6:42 pmanonymous says:
Prosecutors’ offices are presumably familiar with the “beyond a reasonable doubt” standard; whether they get there in a particular case often (usually?) comes down to what witness or witnesses the jury finds credible or incredible. Unless one can *know* in advance that a witness isn’t telling and won’t tell the truth — you can’t suborn perjury — deciding whom to believe is the jury’s (ex post) job. Often, prosecutors are forced to present witnesses with checkered histories that are disclosed and that might or might not lead a jury to decline to credit their testimony. If the rule were that prosecutors should not bring cases unless based on evidence that no reasonable juror could disbelieve or decline to credit, the criminal justice system would probably be powerless to hold to account the very large majority of criminals or to incapacitate them from committing additional crimes.
March 1, 2010, 6:48 pmGrover_Cleveland says:
Would those “free accommodations” have been in a cell?
Btw $2,300 a month would probably get you a one-bedroom apartment in an “exclusive” area of san Francisco (Pacific Heights?) in 2007.
March 1, 2010, 6:53 pmanonymous says:
As someone who falls into the middle ground of being just well-to-do enough that the AMT zaps his tax deductions but insufficiently well-to-do that not having the deductions is painful, sufficiently well-off-enough so as to be expected to pay full-freight tuition but not so well-to-do that paying the tuition promises to be a bank-breaker, I have considerable sympathy with the sentiment that it’s tough to be stuck in the middle between people who can easily pay for anything and people who are far enough at the other extreme that they get what middle-class people would struggle to pay for, for free.
That said, a lot of people think everyone (or, loosely, “society”) would obviously be better off if someone else (“the government”) would just pay for things that are really important. Putting aside the value-judgment questions about whether it’s desirable to have universal government entitlements to these things, at some point these things have to be paid for by somebody at some point.
It’s easy to say it’s unfair for someone to have had to pay for his legal defense because he was acquitted; as a taxpayer, I’d consider it insult to injury if a factually guilty defendant — whose prosecution was clearly justified even if it did not succeed — got to skate because of the high “beyond a reasonable doubt” hurdle and then got to serve me and the other taxpayer with a five-digit (at least) bill for putting him through the trouble.
March 1, 2010, 7:09 pmMike McDougal says:
To quote the great legal philosopher Jim Bunning, “tough sh!t.” Every day thousands of civil litigants are forced to decide whether to bring suits that could subject them to liability for the other side’s fees. It doesn’t cause much of a problem.
March 1, 2010, 7:14 pmJust Dropping By says:
This is eye opening to me because I always thought the law was that any criminal defendant (at least where the alleged crime is at the level that the right to counsel has attached) was entitled to be represented by a public defender, not that it was subject to “means testing.”
March 1, 2010, 7:26 pmtde says:
I wonder what really happened here. The opinion notes:
The ct. denied this motion.
So before trial it appears that Wilson tried to do the “right” thing.
March 1, 2010, 7:37 pmLaura Victoria says:
To “Just Dropping By”: Although a defendant is not automatically entitled to a PD, when I practiced in California the judges there would appoint counsel the moment a defendant appeared in court without one. If nothing else, the judges wanted to avoid dealing with pro se defendants just because it was a pain to them. I also saw that in Utah.
Then I moved to Colorado and the only people getting PDs are illegal aliens getting paid under the table who go onto lie and claim they are earning zilch. A broke, but previously employed, guy charged with felony possession of child pornography, barely just got the PD after proving he was broke. But the judge whined on that it was one of the most difficult decisions in his life. This was after the guy spent all his money on his private counsel, and the private counsel withdrew after he couldn’t pay any more. (This is a different case than the misdemeanor I posted about before).
It is pathetic to see all this handwringing about appointing counsel in the same context where the so-called representative of “The People” can spend all he wants without a shred of accountability.
March 1, 2010, 7:44 pmpublic_defender says:
Given that 1) a huge proportion of those criminally charged are indigent, and 2) those who can usually prefer to hire their own lawyer (even if the local PD is probably better), why do some of you think it’s an efficient use of government resources to check and verify every application in the hopes of catching one here or there that could legally hire his or her own attorney?
For appellate filing fees, my office spends a huge amount of time verifying indigency, getting the right form to a client in prison, back from a client in prison, and then to the right clerk. Sometimes the process has to be repeated if the client made a mistake (no notary, missed a line, etc.). That’s time we could have spent representing people. Basically, fee recovery and indigency screenings are wasteful resources sucks.
Government can be really stupid when it comes to money and criminal defendants. I once had to do two appeals in a case over about $500 in restitution. The amount should have been clear, but the trial judge wanted to give more than statute allowed. So we went through two appeals, with government-paid lawyers on both sides, to get to what should have been bleeping obvious from Day 1. Only government would spend thousands to collect hundreds.
March 1, 2010, 7:44 pmanonymous says:
First, Jim Bunning is not a great legal philosopher. Second, unless there’s something I’m missing, in the United States — as opposed to Great Britain — fee shifting is the exception, and decidedly not the norm, in civil cases. One significant criticism of the British rule, in fact, is that the prospect of a big fee-shifting award unduly deters litigants from bringing claims that would likely be meritorious, simply because success is not assured and any significant possibility of a fee-shifting award in the event of a loss would be catastrophic. Third, if we’re talking about Rule 11 sanctions or sanctions under statutes or court rules against frivolous and vexatious litigation, that’s consistent with statutes that authorize fee recovery for criminal defendants who’ve been subjected to a prosecution that’s found not to have been substantially justified, even at the front end, but simply in favor of any litigant who, for any reason, prevails at trial. And if we are talking about sanctions, when the “thousands of civil litigants” are forced to decide each day whether or not filing a complaint would subject them to sanctions for filing frivolous or vexatious litigation, the burden of those sanctions *might* fall on a corporations’ shareholders, if the plaintiff is a corporation with shareholders, but they would not be borne by all of the jurisdiction’s taxpayers, who can’t opt in or out by selling their shares (except by moving). And, even if we don’t think that white-collar crimes really hurt anyone, I think most people would be troubled about telling a city or state government that they should think twice about prosecuting even, say, murderers for murders if the prosecution depends in any significant way on the testimony of former associates or others with checkered histories on the theory that, if for any reason the jury acquits, the defendant not only skates but the city or state government gets a six-digit bill.
March 1, 2010, 7:48 pmOhio Scrivener says:
I don’t disagree with J. Sutton’s opinion. Its pretty hard to overturn the decision of the trial court on an abuse of discretion standard. Plus, the decision seems consistent with the statute. As the court noted, the Criminal Justice Act allows the trial court to order the repayment of legal services if “at any time after the appointment” the court learns that the defendant is “financially able” to obtain counsel or pay for the representation already provided. 18 U.S.C. § 3006A(c), (f).
Now, for the benefit of us poor civil lawyers, what happens if the defendant violates the court’s order to pay for the legal services and is held in contempt of court? Could he be threatened with jail time as a sanction for contempt?
March 1, 2010, 7:52 pmOwen H. says:
If I am wrongly accused of a crime, why should have to bear the cost of my defense? If I can’t have a PD, I want my defense paid for when I am found not guilty.
March 1, 2010, 7:59 pmanonymous says:
Do you feel the same way about other government benefits fraud or, say, claiming phony tax deductions or credits to which the taxpayer has to know he’s not entitled? (Because I could really use a few thousand more dollars back from Uncle Sam this year and that I could use an amount that would be easily less than the cost of prosecuting me for tax fraud.) In other words, your argument seems to have no role for deterrence or consequences; you seem to think it’s just not worth it if the (short-term) costs seem to outweigh the (short-term) gains.
I know there’s a reason why Wendy’s spent all of that money when those grifters claimed they found a severed finger in their chili; Wendy’s obviously spent a lot more money than the amount for which they were being shaken down; but Wendy’s obviously thought it was worth it (in the long run), not only to vindicate its public image but to deter future shakedown artists, even if it means (in the short-term) spending more money than it’s worth to deter fraud.
March 1, 2010, 8:04 pmDavid Nieporent says:
Really? Do you not watch television? “…if you cannot afford an attorney, one will be appointed for you.” Isn’t the obvious corollary of that that if you can afford an attorney, one won’t be appointed for you?
March 1, 2010, 8:06 pmohwilleke says:
If so, why don’t we see such perverse consequences in Florida, where an acquittal entitles you to reimbursement for your attorneys’ fees?
Note also that under existing law, Hyde Amendment, a 1997 law, federal criminal defendants may already seek financial redress when they have been subjected to vexatious, frivolous or bad faith federal criminal prosecutions.
March 1, 2010, 8:07 pmbiolawguy says:
This is kind of disturbing…the whole notion of “reasonable doubt” is supposed to make the standard objective; i.e. no reasonable person could doubt the guilt.
It rather creates a philosophical meta-standard to suggest that reasonable people can disagree about whether or not reasonable people can disagree!
March 1, 2010, 8:08 pmDavid Nieporent says:
Courts do not let people change attorneys a week before trial. It looks like gamesmanship — a way to stall — not “trying to do the right thing.” Plus, he hadn’t actually hired the private counsel yet, so how much did he “try”?
March 1, 2010, 8:08 pmSimon Jester says:
There is a pervasive sentiment that “rich” people do not deserve public defenders?
Interestingly enough, it is the middle-class and the “rich” that pay for the public defenders used by the indigent.
The inmates are running the asylum. The people who finance the service are excluded from enjoying it. Why not keep the biggest taxpayers from taking their children to the public park as well?
Here’s an idea… in any case where someone faces a public PROSECUTOR, at minimum, they should have access to a public DEFENDER. To shore things up, equalize the salaries (and access to government resources) of prosecutors and defenders as well. The criminal justice system would grind to a halt if it was made fair.
As it is, it is a stacked deck every time.
We could use more jokers like Wilson.
;->
March 1, 2010, 8:21 pmNI says:
This is probably a situation in which no matter what the rule is, it will end up being unfair to somebody. After reading everybody’s comments, I think the government should pay the attorney fees of acquitted defendants, but for a reason nobody’s given yet: It would be yet one more incentive for prosecutors to use their discretion to decide which cases should actually be brought.
There are too many prosecutors who think that any case that can be brought should be brought. Let it be a purely technical violation in which nobody was injured, let it be a situation in which there was no actual intent to violate the law, let there be extenuating circumstances from here to eternity, entirely too many prosecutors think that they should convict anyone they can, whether it’s justice in any metaphysical sense or not.
Well, says I, if making them face the possibility of having to reimburse someone for a case that nobody with a lick of sense would have brought in the first place prevents some of that from happening, great.
March 1, 2010, 8:21 pmanonymous says:
That’s why I alluded to the Hyde Amendment, even though I didn’t mention it by name.
Are you saying that in Florida, the simple fact of an acquittal entitles you as a matter of law to require the state to pay your attorney’s fees? (With no limits?)
March 1, 2010, 8:25 pmohwilleke says:
It isn’t that the sentiment is pervasive, it is that this is the current law. I don’t think that there is deep seated concern about a universal public defender system in the general public (indeed many people don’t know that the existing system is means tested and also don’t know that acquitted defendants aren’t entitled to be reimbursed for the cost of their defense).
Disagreement with the status quo, however, doesn’t justify gaming the system to your own financial benefit, when those are the rules.
March 1, 2010, 8:26 pmGuest14 says:
That wouldn’t be the rule. The rule would be that the person in the best position to avoid a cost would be the person to bear it. It’s very easy to decide a cost is worthwhile when someone else has to pay for it, and it leads to too much being spent for too little benefit. Better to let the person who is deciding whether there is to be a prosecution at all determine whether it’s worth the price tag.
March 1, 2010, 8:30 pmanonymous says:
The standard for guilt in a criminal case is whether the jury, on the basis of the evidence presented to it and the judge’s instructions, finds beyond a reasonable doubt that the defendant is guilty. A standard under which crimes could not be charged — or that the prosecution would be strongly deterred from prosecuting — unless it was clear **before** the trial that no reasonable person **at trial** would entertain a reasonable doubt as to the defendant’s guilt would be unworkable. (How would you even know, even after a trial at which the defendant has been convicted, what any reasonable juror might conclude? We would only know what th the one panel of twelve jurors concluded.)
March 1, 2010, 8:30 pmDownfall says:
The people who raise the point about the costs to the government: The costs will be borne one way or the other. The only question is whether the costs will be borne by the government or the defendants who were found innocent. Yes, some people who were guilty will get their expenses reimbursed. Given the choice between ruining an innocent man and putting a guilty man in a position no better than if he had never been prosecuted, the choice is clear: We should risk the latter to prevent the former.
March 1, 2010, 8:32 pmJohn says:
Those are called Panel Attorneys. Read the Nolo Press “Criminal Law Handbook”. They can be good but come with their own issues.
March 1, 2010, 8:46 pmMike says:
This is a mighty arrogant tone for such a vapid comment.
1. I cannot afford a criminal defense lawyer. 2. I am not indigent. 1 & 2, as anyone who does criminal defense knows, are not inconsistent. The law simply says that if you are not indigent, then you can afford a lawyer. The is wrong.
March 1, 2010, 8:52 pmMalvolio says:
A datapoint: I rent out a one-bedroom in an otherwise non-exclusive part of San Francisco for just under $3000 a month.
It has a nice view.
March 1, 2010, 8:56 pmjccamp says:
“The defendant didn’t make the govt charge him.”
Well, strictly speaking, I think a given defendant’s pre-arrest actions had a whole lot to do with getting charged. Defendants get acquitted for lots of reasons: good defense attorneys, poor prosecutors, bad police work, witnesses and/or victims with transient or unstable lifestyles, etc, all of which add up to “reasonable doubt.” But there’s a reason verdicts are rendered as “not guilty” instead of “innocent.”
However, there seems to be a lot of comment here suggestive of bad faith prosecutions. I don’t think such is very common at all.
BTW, although I have worked with some very bright and motivated career prosecutors, if I had to pick the better team as a group, PD’s win in a walk. I have always suspected that when sharp young law school graduates look around for a government job with lots of trial experience, they are inclined by temperament and philosophy to go public defender. On the other hand, at least some of the entry level prosecutors are there (unhappily so) because not much else was available. There are, of course, exceptions on both sides of this.
March 1, 2010, 9:42 pmMike McDougal says:
You didn’t take my “great philosopher” quote seriously, did you?
It’s phenomenally common. It exists in virtually every contract dispute either by virtue of a statute or by the terms of the contract itself. The so-called “American Rule” has been massively undermined.
One significant criticism of the American Rule is that there are often no consequences to inflicting massive financial harm on others through litigation. That’s particularly true given that Rule 11 is an incredibly low hurdle. You seem to be worried about catastrophic losses, but you make absolutely no effort to justify why a party with a bad case should be able to impose catastrophic costs on others as long as they can clear the virtually meaningless Rule 11 hurdle.
,
March 1, 2010, 9:44 pmWe’re not talking about Rule 11. Rule 11 is a joke.
law student says:
David Nieporent writes:
I could be wrong, but I thought the federal Criminal Justice Act allows for appointed counsel for anyone who is not “financially able” to pay for representation. Most people aren’t financially able to defend a complicated federal case, ergo a lot of people qualify for federal public defenders who aren’t necessarily indigent (and who perhaps might not qualify for a state PD, in a simpler case).
March 1, 2010, 9:47 pmAnon321 says:
Here’s an idea… in any case where someone faces a public PROSECUTOR, at minimum, they should have access to a public DEFENDER.
So, a public option? I’m pretty sure I heard somewhere that that will lead to communism …
March 1, 2010, 9:59 pmTatil says:
What part of what I said sounds like I suggested that “prosecutors should only pick cases that no reasonable juror could disbelieve or decline to credit?” I just said, based on available evidence, DAs decide which cases to pursue and spend money on. If the state was forced to pay for the attorney fees of the acquitted defendants, this would increase the money spent on unsuccessful trials, but it is not like they were free for the state anyways. Therefore, I don’t think it would make a extreme effect on prosecutors, as they already make cost-benefit analysis.
March 1, 2010, 10:51 pmAnonymous says:
No, I didn’t.
By the way, I share the concern that the American Rule is susceptible to serious abuse (among other things, civil discovery practice, I think, would certainly be different if parties knew they might be on the hook for the other side’s legal bills), and I agree that Rule 11 is largely toothless (at least as enforced with the possible exception of the Seventh Circuit). In criminal cases, though, the burdens borne by prosecution and defense are so obviously asymmetric that I’m surprised that people think it’s easy to determine ex ante whether a prosecution will result in a jury finding guilt beyond a reasonable doubt. In a number of the comments, there appears to be no concern for the societal costs of overdeterring prosecutions of dangerous individuals when, for example, the prosecution’s witness list will not consist of the proverbial bus-load of nuns, i.e., the jury’s verdict will be likely to turn on its assessment of witness credibility, and thus may well result in an acquittal even when the prosecution obviously was justified and the proof — in the jury’s view — fell short of beyond-a-reasonable-doubt. A number of the commenters seem pretty willing to jump from “the defendant was acquitted” to “the prosecution had no case and should never have prosecuted to begin with.”
March 1, 2010, 10:56 pmDave N. says:
I don’t agree with those who think that the State should pay the defense costs for unsuccessful prosecutions. On the other hand, I am appalled that Colorado is means testing access to appointed counsel.
As I stated in my original post, it depends on the charge. As a fairly successful, mid-career government lawyer making over $100k a year, I would be “indigent” if I was charged with murder or something similarly serious.
March 1, 2010, 11:25 pmpublic_defender says:
You seem to think that my client base tends to worry about long-term consequences. If they did, they probably wouldn’t be my clients. I stand by my point. Many indigency rules waste money.
On the positive side (at least from the side of criminal defense lawyers), this case will make it a little easier for a CJA attorneys to turn in a $50K+ bills in non-violent felony cases. The court of appeals just held that the amount was reasonable.
March 2, 2010, 4:53 amMJC says:
I can’t help thinking at this point that any story ending in money for lawyers is a good thing, regardless of who pays the bill or why they have to pay it.
March 2, 2010, 9:33 ambbbeard says:
Three words: SINGLE PAYER LEGAL.
“Justice is a right, not a privilege.”
“We spend a larger percentage of our GDP on legal expenses than any other nation.”
“Our national conscience cannot support a two-tier legal system.”
“Our nation cannot afford to line the pockets of greedy for-profit lawyers when middle-class people can no longer afford basic legal services.”
“We have to bend the cost curve of legal expenditures, while expanding coverage to every American.”
“Why shouldn’t lawyers work for the government?”
March 2, 2010, 10:33 amShelbyC says:
Wait, you mean if I’m accused of a crime by the government, I can’t hire my own lawyer, I have to take one of theirs? I’m not sure I like that idea.
March 2, 2010, 11:44 amBored Lawyer says:
Informational questions: Is there the equivalent of Rule 11 in the Rules of Criminal Procedure? In a federal statute?
What about at the State level?
March 2, 2010, 12:58 pmDavid Chesler says:
I agree with all the commenters who saw the this points out how far from whole an acquitted defendant is left.
I’m wondering what line of work Wilson is in, and what I should be in. Without having been imprisoned, keeping my skills current, and being good at what I do and have done for a quarter century (software) I don’t make what Wilson made his first year out of prison; when my contract ends or my department has a layoff, I’ll consider myself lucky if I’m working again in 6 months.
March 2, 2010, 4:30 pmDavid says:
“You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. ”
What is the correct answer/action if you want to be represented by an attorney, but don’t know any, but could afford one? The warning seems to suggest that if you can afford an attorney one will not be appointed. So how do you get one?
I have often wondered this … haven’t had the need for an answer yet but this seems the right forum to get it, in case I need to know in the future.
Thanks! — David
March 2, 2010, 6:39 pmDave N. says:
David,
There are two kinds of right to counsel: The Fifth Amendment right to counsel and the Sixth Amendment right to counsel.
The Miranda warnings, which many 6 year-olds can parrot, deal with the Fifth Amendment right to have an attorney during questioning. The practical reality is that when someone is Mirandized and asks for an attorney, the questioning ends — and as we learned recently, there must be a 14 day break after assertion of the right before that suspect may be questioned again, about ANY crime.
The Sixth Amendment right to counsel, which is offense specific, is a trial right to counsel.
And here’s some free legal advice. If a police officer ever reads you your Miranda rights, say the following four words and nothing more: “I want a lawyer.”
March 2, 2010, 9:32 pmDavid says:
Dave N,
OK, and when you say, “I want a lawyer”, what happens then if you don’t know a lawyer or have one on retainer? But can afford one?
Thanks! — David
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April 2, 2010, 1:38 pmDavid Scott says:
I just recently audio taped my court appointed lawyer saying”I won’t disturb the relationship I have with the DA and appointed judge. I’m going in there and do exactly what they tell me to do in your case regardless if we’ve been given the evidence or not”.
May 6, 2010, 1:00 pmSo I ask you this, are there truly any court appointed lawyers who haven’t sold their soul?
To top it off, the judge says there’s no grounds for the appointment of another attorney. WTF?
The Fort Bend County District attorney and Judges need to stop strong arming defendants and give them their right to a fair defense and their right to the compulsory process.
WHO IS GOING TO STOP THESE PEOPLE??? Unfortunately no lawyer that I’ve come across has the balls to step up for the rights of the defendant and call the District Attorneys on their blatant disregard for the violations taking place on a daily basis and the backing of the “APPOINTED” Judges who we trust in.