Know Your Rights 101 – Right to Counsel

Written by Jon, our fellow attorney and legal expert.

You have the right to an attorney, and if you cannot afford an attorney one will be provided to you…

Continuing in the same direction as the last post, we are still on track to cover the variety of rights that you and I have when it comes to dealing with the police.

The Fifth and Sixth Amendments of the Constitution give a criminal defendant the right to counsel, but there are limitations that are important to know.

To clarify- the right to an attorney only applies to criminal, not civil matters.

Although the language of the Constitution seems straight forward, the U.S. Supreme Court did not clarify the issue until 1963 in the seminal case Gideon v. Wainwright.

There was a great book written about the case, Gideon’s Trumpet, (later made into a movie) which is actually pretty cool to read and worth your time if you’re interested, but I digress.

This may be limited to cases involving jail time, and there is a push to have the right to counsel attach to other proceedings, such as family court matters where your kids can be taken away, but as of now criminal proceedings are the only matter covered across the board.

The right to an attorney is supposed to attach from the time of custodial interrogation until the end of trial. Basically, at all “critical stages of the proceeding.”

Obviously having a lawyer with you at trial is needed, but also, and this may be the most important thing you ever read:

1. If you are arrested, invoke your right to an attorney during questioning.

Tell the police you want an attorney, specifically saying those words. Not, “Maybe I should have an attorney,” not “where is my attorney,” but “I would like an attorney present now.”

This could be the difference between being charged and going free.

I cannot tell you how many cases hinged on my clients simply giving a confession, when the police had very little or no hard evidence! Even if you ask for an attorney, they will try to talk to you anyway. Be persuasive and be friendly – they may simply try to keep you waiting – they are trained to try and get you to talk.

They will give you a cigarette, get you something to drink, act like they’re your friend.

News flash-they’re not.

They may simply ignore your request for a lawyer and leave you in an interrogation room for hours on end. No matter, don’t talk! Again, tell the police you want an attorney.

2. If you can afford an attorney, you should hire one, not simply rely on a court appointed attorney.

Mark Twain said, “The law is a system that protects everybody who can afford to hire a good lawyer.”  This is not an indictment of public defenders:

In some jurisdictions some Public Defenders are the most skilled attorneys.

Many do a better job of pushing back against prosecutors and judges in fighting for their clients. (Full disclosure- I’m a former public defender myself, and don’t get me started on how many “real attorneys” charge clients a stupid amount of money and do a piss-poor job).

Like I said, many paid attorneys, not all.

Many, many private attorneys are former public defenders themselves or former prosecutors and are simply great attorneys. These opinions are shared by many judges, prosecutors, and private attorneys themselves. However, I will also let you in a little secret:

All public defenders are not created equal.

You may get one who is newer to the job, fresh out of law school. One may be appointed who is burnt out and at the end of their rope. You may simply be granted an appointed attorney who is not that good at their job. You may get one who provides effective counsel, but not the balls to the wall representation that you think you deserve.

This clearly includes private attorneys as well. All the more reason to weigh all your options carefully.

The reality, however, is this:

When you hire your own attorney you are given one luxury that an indigent client is not given: Choice.

Having counsel by your side is a constitutionally protected right, and you should at the very least consider hiring private counsel if you have the means.

You can sift through different lawyers, get different quotes for their services, talk to them to see if you even get along and like their personality, and most importantly know that what you are really paying for is their time – 99% of private attorneys simply do not have the same case load as public defenders and almost all jurisdictions will limit you to the public defender who is assigned your case and will not keep switching them until you feel happy.

Do what you will, but if you ask the court to appoint an attorney, beware!

Although the right to an attorney seems straight forward, many judges try to deny you that right.

They will make an arbitrary decision based on your case not being serious enough (even though the right to appointed counsel should attach at any case where you are looking at potential jail time, even misdemeanors).

They may deny you an appointed attorney based on a cursory set of questions and determinations, such as you having a job. They are actually supposed to attach their decision based on your income as a percentage of the federal poverty guidelines, but many judges are lazy and most are overworked as well and many believe denying you a public defender is doing the system a favor even though it causes more problems in the long run.

And one last caveat:

Some judges simply don’t care about the rules.

They want to push through as many cases as possible with the least amount of hassle. They want to get their docket done so they can go play golf. This is in addition to judges appointing lawyers they know do a shitty job and don’t have their client’s best interests at heart.

A few years back, a number of news publications ran stories and editorials on this scenario.

Here’s a couple good links:

For arguments sake, you may be allowed to represent yourself or proceed pro se. There is a procedure that the judge is supposed to follow that determines if you are competent to proceed on your own. However, I will sum up my thoughts on this very briefly:

3. Do yourself a favor and do not proceed pro se.

Frustration, impatience, anger: all valid emotions to have about your attorney when you’re going through a criminal case.  Still not a reason to go through a complicated system on your own when so much is at stake.

I saw a pro se shoplifting trial take 15 minutes and the guy was sentenced to jail for 30 days for stealing $5 worth of ice cream. Representing yourself doesn’t work out, like, ever.

You have a constitutional right to counsel and you should always, always, take advantage of that right.

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