WTF in some states you have to pay for a public defender?

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kiryan
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WTF in some states you have to pay for a public defender?

Postby kiryan » Mon Oct 04, 2010 7:38 pm

http://www.usatoday.com/news/nation/201 ... titialskip

What the hell. How the hell is this legitimate? You need a lawyer if you are going to court, plain and simple. Common sense and what is right or the truth will not get you a satisfactory verdict...
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Re: WTF in some states you have to pay for a public defender?

Postby Sarvis » Mon Oct 04, 2010 7:55 pm

That's utterly retarded.
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Re: WTF in some states you have to pay for a public defender?

Postby Corth » Mon Oct 04, 2010 9:39 pm

I'm guessing the way that this passes constitutional muster is that if you demonstrate to a judge that you are unable to pay the fee, it's waived. The problem I see is that for a layman, that simple process might be overly complex.
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Re: WTF in some states you have to pay for a public defender?

Postby kiryan » Mon Oct 04, 2010 9:53 pm

I remember hearing in California you are only entitled to a public defender if incarceration is a possibility. I didn't like that, but I don't think its a gross travesty.

I suspect you are right Corth, but I don't like it in principle. I mean say I have 200k in equity in my house, can I afford my own attorney? Lets say I make 100k a year and I have credit card bills of 100k a year... can I afford defense?

Why should my financial status matter when the state is charging me with a crime that I am forced to defend myself against? How can you have justice if I am only conditionally entitled to legal representation? I don't like it at all, on the other hand, you're already screwed if you have a public defender working your case whether you can afford better or not.
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Re: WTF in some states you have to pay for a public defender?

Postby teflor the ranger » Tue Oct 05, 2010 12:23 am

Corth wrote:I'm guessing the way that this passes constitutional muster is that if you demonstrate to a judge that you are unable to pay the fee, it's waived. The problem I see is that for a layman, that simple process might be overly complex.

Corth, it's clearly unconstitutional! Unless you're prepared to pay a fee to speak freely, you'd better come out strongly against this.
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Re: WTF in some states you have to pay for a public defender?

Postby Corth » Tue Oct 05, 2010 5:35 am

Well..

The point of providing a free attorney is to make sure that people who cannot otherwise afford one are not deprived of a fair trial. IE - the famous line from the Miranda rights - "If you cannot afford an attorney one will be appointed to represent you by the court". I think Kiryan's position is simply that if you commit a crime the government should pay for both your prosecution and your defense, end of story. I don't agree. If you are facing the loss of liberty and cannot afford an attorney then one should be provided to you. On the other hand, if you have money or assets, then why should the taxpayers subsidize your legal position?

With one major caveat: The burden should be on the state to demonstrate that you are inelligible for a court appointed attorney due to sufficient finances. Putting the burden on the defendant to prove that he/she is destitute creates a situation where a lot of otherwise eligible defendants might waive counsel because they are incapable of going through a complex court process to have counsel appointed. In complex cases which will cost the government a lot of money to defend, with defendants who have cash or assets, the government might want to prove the defendant can pay for an attorney. In the vast majority of cases it wouldn't be economically practical for the government to put up a fight.
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Re: WTF in some states you have to pay for a public defender?

Postby teflor the ranger » Tue Oct 05, 2010 3:34 pm

Yes, I might agree with the burden being on the state to prove that you can afford to pay. Still, the tax man already seems to have this job.
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Re: WTF in some states you have to pay for a public defender?

Postby kiryan » Tue Oct 05, 2010 7:15 pm

Well there is a subtle logic to what you say, but yes if the state is goign to charge you with a crime, they should also have the burden of providing the defense as long as its so inaccessible to the average person. If an average person could defend themselves reasonably, that would be a different story.
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Re: WTF in some states you have to pay for a public defender?

Postby Sarvis » Tue Oct 05, 2010 7:22 pm

kiryan wrote:Well there is a subtle logic to what you say, but yes if the state is goign to charge you with a crime, they should also have the burden of providing the defense as long as its so inaccessible to the average person. If an average person could defend themselves reasonably, that would be a different story.



We're not talking about the average person here... we're talking about the poor.
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Re: WTF in some states you have to pay for a public defender?

Postby kiryan » Tue Oct 05, 2010 7:51 pm

Do you have any idea what it costs to defend yourself? The quotes for a misdemeanor child neglect case I was involved in a few years ago were $3,700 to $8,000 (no limit btw so if it costs more, they charge more). The fine was $2,500 - $4,000 for each of 2 counts (2 kids same incident). If you make 60k a year, not poor by many standards, that is 6.6-13.3% of your gross income (nm taxes that are coming out.

Do you think a lay person could successfully fight a child neglect charge? The law reads one thing, but you have to read case law (which I did) to see how the courts defined various terms. The law I was reviewing required "imminent danger" to the child so I thought it was an easy case because there was no imminent danger. Then after about 8 hours of research, I read a piece of case law which at some point had established that increasing risk could be in some cases imminent danger. Specifically, a kid could be in imminent danger of stranger kidnapping because you left him in a parking lot despite the statistics that say that 96% of kidnapping cases are not stranger kidnappings.

And chances are you won't even make it to arguing the law / charges. A smart person will get their ass owned by a crappy lawyer on the rules of evidence before you even get to discussing the finer points of the law. You basically can not negotiate the legal system without a lawyer. My dad sued a college once something like 13 different claims. The judge and the prosecutor threw out 11 in the first 5 minutes before my dad woke his lawyer up. Its not like we wrote the claims, our lawyer did, but apparently they weren't sound enough because the judge basically said i'm ready for a motion to dismiss this this this etc...
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Re: WTF in some states you have to pay for a public defender?

Postby teflor the ranger » Tue Oct 05, 2010 9:39 pm

kiryan wrote:Well there is a subtle logic to what you say, but yes if the state is goign to charge you with a crime, they should also have the burden of providing the defense as long as its so inaccessible to the average person. If an average person could defend themselves reasonably, that would be a different story.

Excellent point Kiryan. This is a burden already imposed upon you by the state that should assume you are innocent. The state should provide as good a defense as it prosecutes.
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Re: WTF in some states you have to pay for a public defender?

Postby Turxx » Wed Oct 06, 2010 3:15 pm

i didnt see minnesota on that list; i didnt read any of this beyond the headline
i do know in minnesota you can be denied a "public pretender" for making a high bail
i do know in minnesota you may be asked to pay for a public pretender, a percentage based on income
i do know that in minnesota if you have any concept at all of whats going on youre better off representing yourself, having a public pretender is the equivalent of having two prosecutors, but if you cannot make bail you cannot effectively represent yourself
i do know the system is flawed and often corrupt
i have been to prison, i did what i was convicted of, however in the course of the arrest my rights were violated. had i been able to quote exact statutes i would not have needed a public pretender, i could have gotten certain evidence thrown out on my own.
as it was i had to tell the public pretender how and why the evidence was inadmissible
i lost a trial, and i lost it in my "lawyers" closing argument, i cant say for sure he didnt lose intentionally
i know they trade "favors" and these "favors" are peoples lives
but all that is moot
in appeal my conviction was upheld, as it really should have been i guess, a jury did hear _most_ of the truth and was not overtly lied to, mislead maybe as to the extent of their authority and lead to infer lies and half truths, but whatever
my sentence however in appeal was not upheld as it was again a violation of my rights, i did much less time then was wanted from me, 3 years instead of 4 or 5
i feel i should add, my "victim" was society, which is really a way of saying i had no victim and didnt really hurt anyone
now i admit i did what i was convicted of, and im not going to say what i did wasnt wrong, but i parts of it were worse then others, and proportionately i did more time for the lesser offences
i say i should have got off on a technicality
many would be glad i didnt
that such instances are examples of the system failing
these technicalities exist to prevent wrongful convictions
to prevent the abuse of the system by those appointed to enforce or interpret it
history and even present day prove the need for such safety nets
i have been charged with things i didnt do or deserve, have had prosecutors attempt to make these charges stick, even after i made it very clear i knew my rights, the definitions of the charges and had numerous witnesses ready to testify otherwise
seen judges get very angry when these cases came into their courtroom and the whole was revealed
i know these charges would have stuck if i had not been representing myself, public pretenders will not go to bat for you, legally all they need to do is be sure you understand whats happening
the charge does not equal guilt
the ignorant should not be punished for not knowing their rights
the innocent are sometimes convicted
very few cases go to trial, most are plead out
i could go on and on
we have the right against excessive bail, however bail is often set so high no one can hope to make it
public pretenders are supposed to represent you, but i know from experience, your best bet is to make bail, pay a couple high priced lawyers for a consult and then represent yourself
unless you can afford to pay for that lawyer who is in with the prosecutor and the judge, but even then theres no promise they wont take your 15k and sell you down the river in trade for someone elses life, probably someone who can and will need to drop another 15k a year or two down the road on another case
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Re: WTF in some states you have to pay for a public defender?

Postby kiryan » Wed Oct 06, 2010 4:49 pm

I'll agree with Turxx on public defenders... they are nearly worthless. There are some terrifying articles out there about how public defenders don't even meet their client before they show up at court... How can you provide a legitimate defense if you haven't even met or talked much with your client?

I believe there is "trading" favors in the justice system as Turxx described. If you ever need to sue your local community or another lawyer (city, state, school district) you need to get an attorney that does not regularly work in your area. Theres an old addage, don't shit in your bed. You don't want to have your lawyer wondering if the judge/DA is going to retaliate for them working on your case. My dad went through 3 lawyers in his successful suit against a state college. Each time, the lawyer was hopping mad and saying things like they can't do that to you... then within a couple weeks of taking the case I assume they "got the call" and suddenly were inaccessible by phone.

Why is this? You really are buying your attorney's reputation and relationship with the local legal community. Laurel got a speeding ticket once and we hired a lawyer who got a 30 mph over ticket reduced to an equipment violation over lunch. Another case I was involved in basically got settled because the lawyer had coffee with the DA and represented to them that the defendant was a model citizen... mind you the DA was adamant that he was going to prosecute if they didn't accept the plea deal when they didn't have a lawyer. The case probably would've come down to character anyway, but really is this how justice should work? Bullying you into a plea deal unless you pay one of their good ol boys for representation?

Part of this is also perceived work to win. DAs don't have an infinite amount of time or resources. If you hire a lawyer with a good reputation who can drag a case on, the DA is much more likely to want to keep a minor matter out of court whether thats a plea or dropping it entirely. More of it is interpersonal relationships if you ask me.
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Re: WTF in some states you have to pay for a public defender?

Postby Turxx » Wed Oct 06, 2010 6:45 pm

its been a while since ive read the constitution but it seems to me it says, you have a right to representation
in that one would need to define "right", as does that mean you _must_ be offered representation or simply that you cannot be denied? _and_ if by not giving you a lawyer you are thereby denied vs. not allowing you liberty to seek someone to represent you
i do not think the constitution promises state provided legal representation
also it says representation, not lawyer
so if i have a right to be represented, and choose to have kiryan represent me, wouldnt i have that right?
i also believe california is the only state that allows you to take the bar without having first attended and graduated from a recognized law school
i do however feel our right against excessive bail is routinely violated, and while we are innocent until proven guilty if you are incarcerated, and would get out sooner if you "take the deal" rather then go to trial and risk loosing.....
we also have the right to a speedy trial, you will not get one however if you do not demand it, i demanded a speedy trial, my lawyer, the judge, and the prosecutor all were upset by this, but i should have beat my case for one, and for two, state time is easier then county time
so win or loose quicker is better
took 6 months to get my case to trial
without demanding a speedy, would have been no less then 1.5 years
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Re: WTF in some states you have to pay for a public defender?

Postby kiryan » Wed Oct 06, 2010 7:28 pm

I think there are other states where you can take the bar without having gone to an accredited law school. However, I believe in the states where you can do that, you have to have basically clerk for a lawyer and get him to sign something.

I tried to have a speeding ticket thrown out once because it took 10 months before I went before the judge. He said well believe it or not we're fast for the state so denied.

I'm pretty sure I can't represent you. Its a crime everywhere I've ever heard of to practice law without a license.

excessive bail. yea I'll hear you on that. My dad was in jail on "attempted murder" (it was trumped up) and I went down and tried to post a 100k bail at about 1:00 am. They made me wait for like an hour and came back and said bail is now 1 million. They had called the judge, woken him up and had new paperwork filed to change bail so that I couldn't post bail. And to top it all off the chick at the window told me my dad was a bad man.

You know I should probably sue them over that. I wonder waht the statute of limitations is on that.
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Re: WTF in some states you have to pay for a public defender?

Postby kiryan » Thu Oct 07, 2010 12:02 am

Hayes, 47, was convicted on 16 of the 17 charges against him in connection with the deaths of Jennifer Hawke-Petit and her two daughters, including nine counts of murder and capital murder and four counts of kidnapping. The jurors acquitted him of an arson charge in the burning of the family's home.

This is something else we have to stop. Charge inflation. This was a terrible crime, 3 people died 2 of which were raped. How do you get 9 counts of murder and capital murder for 3 people?
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Re: WTF in some states you have to pay for a public defender?

Postby teflor the ranger » Thu Oct 07, 2010 1:39 pm

A state that is required to assume your innocence must provide as good a defense as it provides a prosecution to accuse you of a crime.

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