Indigent Defense – The Right to Counsel

Indigent Defense – The Right to Counsel

Everyone has heard the famous lines on the great number of police television shows out there and already on “Cops”. That line is from the Supreme Court case Miranda v. Arizona, and goes something like this:

You have the right to keep silent. Anything you say may be used against you in court. You have the right to have an attorney present prior to and during any questioning. You have the right to terminate the interview at any time. Do you understand these rights?

The focus of this article today is on the text that is bolded in the above statement-the fact that every person accused of a crime that is facing more than just a fine as punishment has the right to have an attorney present to aid in his or her defense.

Without criminal defense attorneys to help guarantee the accuracy and equal treatment by all involved in the criminal justice system, one could argue that the system would get out of balance and that the State would take advantage of people who do not know their rights or those who for in any case reason, do no exercise their rights-like those set out above.

In Texas, any person who is accused of a crime that carries anything more than a fine only-that is someone facing already one day in jail as a possible sentence upon conviction-and who cannot provide to hire a lawyer may ask the court to appoint counsel at not cost to the accused.

The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense.” Gideon v. Wainwright recognized:

From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to confront his accusers without a lawyer to assist him. 372 U.S. 335, 344 (1963).

It is a general rule that competition brings about growth and development. The criminal justice system in the United States is one that focuses on competition. In fact, it has been labeled as an “adversary system.” What this method is that the State with all its resources brings charges against an accused, who then may proceed to trial, where a decision as to guilt or without thereof will be rendered by a estimate in a bench trial or a jury in a jury trial. While there is a presumption of “innocent until proven guilty” an accused without counsel will almost certainly confront hurdles and obstacles that may be insurmountable to him or her. And in this regard, all persons, in spite of of income level and education, are entitled to have a lawyer to assist with his or her defense. It is by this rule of competition that only the guilty will be convicted, at the minimum in theory.

A criminal defense attorney’s role is to require the State to prove all the elements of its case beyond a reasonable doubt and to explain to an accused what options he or she has to resolve a case-along with the possible consequences of each option. While there are often criminal defense attorneys who advise a client to plead nolo contendere (no contest) to a charge, it may be because he or she understands there is little chance of obtaining a “not guilty” verdict at trial and wants to minimize the punishment imposed on the person. This is usually done by a course of action of plea bargaining.

When a person is charged with a crime, a defense attorney is the only person whose job it is to fight to protect your rights and should include with the client to explain the offense the accused is facing, what the possible range of punishment is and what options there are for probation, including deferred adjudication or deferred disposition. Client’s counsel should also explain what rights you have and what to anticipate during each state of the criminal justice course of action. Then, the attorney should begin to probe the facts of your case and ensure that law enforcement officers or others involved in the time of action do not violate constitutionally protected rights.

While it may not be what a Client wants to hear, an attorney’s role is to keep objective and to provide advice based off his or her experience in the jurisdiction the charges are filed. This includes explaining possible outcomes if the case is tried. It is possible that the attorney will negotiate a plea bargain with the State on behalf of the client, which method that in exchange for the Client’s plea of guilty or no contest a more popular disposition or resolution may be obtained.

And of course, if the case goes to trial, a criminal defense attorney’s role is to protect the Client’s interests as much as possible by cross-examining (questioning) State witnesses and protect evidence by objecting to improper questions and offerings by the State. Also, if the strategy is to present a defense, it is the attorney’s job to do that in addition. But, the best strategy is to sometimes just keep silent… and this could be due to multiple reasons. Defense counsel should explain this to the Client, but ultimately it should be the client’s decision as it is him or her facing possible conviction.

If you cannot provide to hire a criminal defense attorney, ask for the Court to appoint one. Now, there are multiple factors that will affect whether one is appointed. For example, if someone posted bond to get out of jail, many judges are hesitant to appoint counsel because they believe that if a person can provide to pay for his or her release, he or she may pay for counsel. This is not always the case and should not prevent a person from asking for counsel. It is also possible, that circumstances changed from the time of the bond to the time a person is requesting counsel.

You may also ask the magistrate, probably the first estimate that you see. If this estimate does not appoint counsel, politely insist but do not be deterred if the answer is nevertheless “no.” Every time you see a estimate, ask for counsel. And, do not waive your rights or get frustrated and stop asking. This is an accused’s right-one of several. And, this is but one of the principles that separates the United States from so many other countries. I repeat, continue to ask for appointed counsel.

You will have to show your financial position by filling out some sort of form that asks about income and expense. When you go to court, if you do not have counsel, take pay stubs, bank statements, and copies of your monthly bills with you to court, particularly if you have been released on bond. These documents will help the court determine whether you qualify to receive a court-appointed lawyer.

Ask, ask, ask… and ask again to have an attorney appointed.

Sometimes judges and other officials will put off your request for a court-appointed lawyer, usually by telling you to try to hire a lawyer. If the estimate asks or tells you to try to hire a lawyer, try to speak to at the minimum two or three different attorneys before your next court date and acquire written estimates if possible. If not, just write down who you spoke to, when, and how much he or she quoted. If you cannot provide the prices the lawyers quote you, you should return to court and again ask the court to appoint you a lawyer. Be prepared to tell the court about your efforts to hire a lawyer on your own.

Never skip court because you can’t provide to hire a lawyer, already if the estimate said that you had to hire a lawyer before your next court date and you don’t have enough money to do that. Just keep asking for a lawyer and filling out written requests for appointment of counsel every time you go to court. Skipping court will rule to a warrant being issued for your arrest and a much higher bond being set, which could prevent your later release. Also, it may consequence in additional charges being filed for “failing to appear.”

To conclude, the right to have an attorney present is guaranteed in both Texas law and the United States Constitution. Be persistent. Be polite. But, do not waive your rights without the assistance of counsel. Rushing by the time of action will not help you, it is more likely simply going to cost you time in jail or higher fines/community service hours. All those accused have a right to counsel. Know that right and use it!

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