There's a lot at play when it comes to legal representation.
by Rich Stim, Attorney
Within the criminal justice jungle, a defense attorney serves as the defendant’s guide, protector, and confidant. (At least that's how it’s supposed to be.) Defense attorneys are usually grouped in two camps: court-appointed attorneys paid by the government and private attorneys paid by the defendant. Court-appointed attorneys represent defendants who cannot afford attorneys (approximately eighty percent of all criminal defendants). These attorneys are either public defenders who are on government salary, or they are so-called “panel attorneys,” local attorneys chosen from a panel. A small fraction of criminal defendants (approximately two percent) represent themselves and are referred to as “pro se” or “pro per” defendants.
What does a criminal defense attorney do?
Criminal defense attorneys research the facts, investigate the case against their clients and try to negotiate deals with their adversaries (prosecutors). These deals may include reduced bail, reduced charges, and reduced sentences. Because of a number of factors—political and public pressure, overcrowded jails, overloaded court calendars—deal-making has grown in importance and has become an essential element in unclogging the criminal justice system.
Criminal defense attorneys also examine witnesses, help formulate a plea, analyze the prosecutor’s case, assess the potential sentences (and the likelihood of a particular judge awarding such a sentence), review search and seizure procedures, question witnesses, and gather evidence. Defense counsel also provide more personal services by giving the defendant a reality check as to the possible outcomes, and by helping the defendant to deal with the frustrations, humiliations, and fears resulting from being thrown into the criminal justice system. And of course, if no plea deal can be made, the defense lawyer represents the defendant at trial.
How money factors in
A huge factor when it comes to legal representation is the defendant’s financial status—that is, whether the defendant is indigent (cannot afford counsel). Indigent defendants are entitled to court-appointed counsel. And some (but not many) folks have enough money that paying for a lawyer isn't a financial strain. But arranging for legal representation often isn't as straightforward for those who fall in between these groups of people. (For more information on qualifying for an appointed attorney, look here. And for all kinds of information on this topic, see Court-Appointed Attorneys in Criminal Cases.)
The bottom line for judges is that the right to free (government-paid) defense counsel always kicks in whenever an indigent defendant faces a jail or prison sentence. If there is no possibility of incarceration—for example, a judge states on the record that she will not sentence the defendant to jail time—then the defendant is not entitled to free counsel. But if there is a slight chance of being jailed as punishment, a judge will appoint free counsel for an indigent defendant. Otherwise, the judge risks the possibility of an appeals court setting aside the verdict.
Note that the right to free representation does not mean a right to the lawyer of choice. An indigent defendant must accept the services of the appointed counsel or handle the case pro se (see below).
Is a private attorney better than a court-appointed attorney?
Private attorneys charge either on an hourly basis (expect to pay $150 an hour or higher) or by a fixed or set fee. (Private attorneys are prohibited from charging contingency fees, which are payments that depend on the outcome of the case.) Many private attorneys are former prosecutors or public defenders.
Defendants sometimes believe that private attorneys possess a distinct advantage over the overworked public defender’s office or panel attorneys who are paid a minimum fee. But do private attorneys provide better representation than court-appointed government-paid defense counsel? Many studies have been done and the data seems to indicate that the results for defendants are often the same. For example, one studyindicated that defendants represented by private counsel and public defenders fared similarly in conviction rates and sentencing (although those represented by panel attorneys fared worse). Such statistical evidence is not always reliable or clear because of complicating factors. For instance, clients represented by private counsel often have short or no prior criminal records, while indigent defendants are twice as likely to be repeat offenders. What is also unclear—and what creates one of the biggest uncertainties of the criminal justice system—is whether private attorneys can negotiate better plea deals than court-appointed counsel.
Ultimately, the experience, skills, and commitment of the particular attorney at hand—regardless of whether he or she is a public defender, panel attorney, or private lawyer—are the best indicator of the quality of the representation.
The fool for a client …
What is clear is that being represented by a lawyer is almost always the best option. Nevertheless, some criminal defendants represent themselves. The decision whether a defendant can self-represent is ultimately made by the judge, not the defendant. The judge is required to determine the defendant’s competency. That’s because a defendant who cannot provide a competent defense cannot get a fair shake, even if the defendant is adamant about not accepting the services of a court-appointed attorney. When determining whether a defendant can go pro se, a judge will consider factors such as:
- the seriousness of the crime
- the defendant’s language skills and education
- whether the defendant understands the nature of the proceedings, and
- whether the defendant is knowingly giving up his right to counsel.