Any legal eagles out there? I have a question re: rights to an attorney.

[KyndCulture]

I am on the prosecution side of a case that went to court today. The defendant ultimately plead guilty to one misdemeanor and one felony count however he was not given an attorney because the DA's office said he didn't qualify for a public defender due to income.

I'm a little worried that he may have a cause for an appeal. I persoinally want this over and not dragged out any longer so I'm a bit stressed over this.

It was my understanding that the miranda rights are supposed to give you an attorney if you can't afford one. It doesn't say if you don't make too much money.

Anybody got any insight? Isn't this unconstitutional?

[Mythsaje]

1. Probably all depends on your definition of

"afford."

[eyesroll]

2. Not a lawyer, but...

I know here in WI the state sets an income limit at which one is eligible for a public defender. If you're over that (and it may be a formula that takes into consideration dependents and such -- I don't know), you are considered to be able to afford it. I don't know if anyone's tried to challenge that on constitutional grounds.

I don't think the constitution would require "affordability" to be up to the accused. If that were true, the Enron executives could theoretically claim they couldn't afford an attorney because all of their assets were tied up in Enron and/or frozen, etc.

[Fredda Weinberg]

3. There's no single version, but here's the "standard"

4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.

http://usgovinfo.about.com/cs/mirandarights/a/miranda_2.htm

[ThoughtCriminal]

4. I assume he requested a PD but was denied?

on the basis of income?

[KyndCulture]

9. Yes exactly.

[BlooInBloo]

5. In a nutshell....

You have an absolute right to an attorney, unless gw says otherwise.

[Gman]

6. Miranda never guaranteed you the right to an attorney

Miranda gives you a right to be made aware that you have the right to retain an attorney and talk to that attorney, if you so choose. I think the issue of being able to pay came about later and was upheld in court cases.

I am not an attorney. I hope you are not either!

[KyndCulture]

8. No I'm not an attorney. I'm just curious.

I am the victim in the case and am not involved in the trial. I just don't want him to skate on these charges over something crazy.

[Hamlette]

14. Gideon v Wainwright is the case giving rights to attorney

at no cost to indigent defendants if there is a liklihood of jail time. Gideon actually predates Miranda by three years (1963, 1966). If the person in question here does not go to jail, it is probably okay and won't be overturned on that issue. Incidently, very few cases are overturned on the question of ability to pay for an attorney. I used to be a public defender and haven't really kept up with the law but I did a quick check and couldn't find anything.

I wouldn't worry about it.

[Gman]

28. It's been quite a few years since I took Con Law

thank you!

[Cleita]

7. From what I understand if you make too much money, even

if you are broke for other reasons, you will be denied a DA. This leaves you with two choices, defend yourself if the judge allows it (many don't)or borrow the money to get an attorney.

[VelmaD]

10. So what happens if...

the judge won't let you represent yourself and you can't borrow money to get an attorney?

[Cleita]

15. I'd say that you are between a rock and a hard place.

Unfortunately many judges and the law often don't give a shit. I suppose you will go unrepresented in that case.

[VelmaD]

18. I guess I just don't understand how that would work...

would the defendant just have to sit there through the trial and not be able to say anything? Wowee.

[Cleita]

19. I don't know. I've never witnessed anything like that.

Most people have managed to come up with the dough even though it might be at great sacrifice. Maybe someone who has will chime in.

[dr.strangelove]

21. No

If a court rules you are not competant to represent yourself, they can order a court appointed attorney and put an attorey's lien on you, so that the PD's office can garnish tax refunds, lottery winnings and potentially wages.

The court can not deny you the right to represent yourself, though anyone who does this is making a mistake in almost every case.

[northzax]

24. no judge can prevent you from representing yourself

you have the total right to the attorney of your choice as a criminal defendant (assuming you can come to terms with that attorney) most people can make deals with themselves.

they can, and should, strongly discourage you from doing so.

[stop the bleeding]

11. what does the prosecution say about his chances for an appeal?

Seems like they would have a GOOD idea as to where this proceeding may eventually end up.

[LittleWoman]

12. Gideon v Wainwright (1963)

guarantees the right to an attorney in a felony trial. This was covered in a book titled Gideon's Trumpet by Anthony Lewis.

Link to a quick overview of the case <http://www.oyez.org/oyez/resource/case/139>

[Xithras]

13. Legally, PD's are only required for the indigent.

It's been established by the Supreme Court via several cases. The government is only required to provide counsel to accused criminals when those criminals are incapable of providing their own. If you have a house that can be mortgaged, retirement assets that can be leveraged, cars that can be sold, or stock options that can be exercised, you are NOT indigent in the eyes of the law. You cannot legally claim poverty simply because you don't want to lose your personal assets.

From a legal point of view, this man declined counsel, he wasn't denied it. He elected not to sell his property and tap his assets to hire a lawyer, which makes it legally and ethically his problem.

You have nothing to worry about.

[simonm]

20. DA has no authority to waive someone's rights

Only the court can allow a defendant pro se status in a criminal proceeding. Trial Judges do no take these type of cases lightly, especially when felony charges are involved.

[dr.strangelove]

22. well, maybe they do take it lightly

Granted this is NY, but we have literally dozens of pro se felony cases at any given time. the judges are pretty well used to it, so it does not get any more "special" attention than other cases.

[simonm]

25. Understandable

Reminds me of how traffic courts focus on expediency.

[simonm]

16. Short answer, Yes - unless he knowingly waived his rights

A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer which attaches at the pleading stage of the criminal process and may be waived only by voluntary and knowing action. U.S.C.A. Const.Amend. 6.

Amendment VI. Jury trials for crimes, and procedural rights


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 wherein 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.



Disclaimer: Just stayed at a Holiday Inn last night. I'm not a lawyer.

[dr.strangelove]

17. I'm a public defender

Well, not all the time. I work for a large NY firm now, but I have worked in the role of indignet criminal defense counsel in Oregon and NY. In Oregon where I worked a non-profit corporation set up by defense attorneys does the work. You have to provide some income and wealth verification and then you get an attorney. If your income or wealth is too high, you will not be able to get a free attorney.

I often charge a reduced rate for clients who were turned down for an indigent attorney, but sometimes even that is not enough. I don;t have as much control now as I did when I was in private practice. Now I have to do pro-bono work to help out peole who fall into this crack. There are not a great number of people who fall into the crack, but it is there nonetheless.

There is NO RIGHT to a free attorney. The state must provide you with an attorney if you can not afford one. That is not a decision left up to you. If you have money that is being spent on other debts not related to your well-being (such as your home, healthcare and food) you may be forced to lose the item securing the debt, or file for bankruptcy. For example, if you have a car loan, you may need to sell the car or turn it into the bank and stop making payments so you can get a lawyer. You may need to stop paying those credit cards you ran up in college or during that dark phase you went through. Criminal law is pretty important. It is far better to be out of jail and in bankruptcy than in jail.

I have to explain this to people all the time. It is tough for some to understand.

I do Pro-Bono indigent work as often as I can. It is mostly landlord tenant and some gay rights work, but I did about 5 DUI cases last year.

[simonm]

23. Question

The original poster mentioned that the DA refused the defendant legal representation.

If the determination of the defendant's financial status was made solely by the DA or Public Defender and without participation by the court, shouldn't that be grounds for appeal?

[dr.strangelove]

26. My suspicion is that there was an error

made in identifying the parties or in understanding who really informed the defendant of this. Often the PD (I use the generic PD for public defender, though most places now have private attorneys who get per diem or per defendant fees to represent the indigent) and the Da are hard to distinguish for those not familiar with the system.

What usually happens in terms of procedure is this: At the arraignment, one PD represents everyone being arraigned. An appearance date is set for some period of time, usually a few days if the person is incarcerated, or a few weeks if the person is "released on their own recognizance".

In that time, you will need to go to the PDs office, often int eh same building as the DA. If you are in lockup, they will come to you. If you qualify, you get a lawyer. If not, you get a letter explaining that you don;t qualify.

At that next court appointment, a case management is set up and the person often does not understand why they did not get a lawyer. Sometimes the DA will explain it. Sometimes a clerk or bailiff will. Sometimes a judge will. The letter will say it all and refer you to the legal basis for the denial, but DAs often try to help explain it.
Sometimes because the DA and the PD are talking before and after the conference, people get them confused, which is what I suspect happened. here.

To answer your question, no the DA can not deny you a lawyer.

[Just Me]

27. He applied for a public defender and didn't qualify.

I'd look at the financial requirements to qualify for an appointed counsel.

I, too, would worry about a conviction without representation.

[KyndCulture]

29. That's exactly what happened.

That's why I am a bit worried.