Why is it that we allow private defense attorneys?

[originalpckelly]

There are no private prosecutors, why private defenders?

Isn't that inherently unfair to poor or even the middle class?

[originalpckelly]

1. I have an idea...

I think that prosecutors and defenders should be mandated to switch places every other trial.

[Raskolnik]

That would be like having heart and brain surgeons switch places

every other trial.

Prosecutors and defense attorneys have different skills, and there is usually a very good reason they are doing the particular job they are doing.

(this is beside the fact that there is really no such thing as "every other trial" for attorneys that may handle around a hundred cases at a time)

[originalpckelly]

2. Wow! So little response to this...

Why?

[pitohui]

5. you really don't know?

a public defender spends about 20 minutes on each case, at least around here, if you just want everyone in the country railroaded into prison without any hope at all, then force everyone to use a public defender

we have a name for people who use public defenders..."prisoners"

millions upon millions of public money is spent on investigations and prosecution, about $100 a pop is spent on defense, so until our policy changes such that we are serious about providing people with a good defense then anyone who can possibly afford a private defense should get one because the system as it exists is completely broken and constantly convicts innocent people as later shown by DNA, the jury system probably all sounded very well back in the day but we now know that it simply doesn't work to get at the truth

we need something better but it's an untouchable part of our tradition so, until then, you had better be able to afford a private lawyer if you are accused of a crime because otherwise you are totally screwed

[Skittles]

8. I have to say

I attended a trial this year of a lady who ran a red light and killed a friend of mine. She was indigent and defended by a public defender and I have to say, I was VERY IMPRESSED - that woman (the lawyer) did not miss a trick, was very skilled and did right by her client - it surprised me. But I know this is probably the exception and that especially the big city public defenders are very overworked and under-funded.

[pitohui]

12. yeah i live in the new orleans metro area

the public defenders have to look at the file shoved in their hand on the courtroom steps to even know the defendent's name

i had neighbors in a murder trial, a MURDER trial, who were "defended" by a defender who had never met them before, needless to say, altho they didn't do it, they were found guilty

it's most depressing

this is the land of the golden rule, he who gots the gold makes the rules

[PA Democrat]

84. My husband does both private defense work and also takes cases through

the public defender's office. I can honestly say that there is no difference in the effort that he puts forth for either type of client. I know that there are public defenders who suck, but there are also a lot that are very serious about defending their clients' rights. If they fail to protect the rights of the poorest of our citizens, we all lose in the long run.

[originalpckelly]

11. If there was no industry for private defense attorneys...

and prosecutors and defense attorneys routinely rotated, so that there is no difference in quality, then it would seem to be a fairer system than the one we have now. In our current system, you are absolutely correct. Wealth determines whether someone is convicted of a crime, not guilt or innocence.

Do you see the difference, and how much better the system would be?

There would be more motivation to have better defense attorneys because the elites would be subject to the same defenders as the poor.

[pitohui]

13. i see that no one would bother to study criminal law

all the people with talent would move over to civil and corporate law, not that most of them haven't already

[originalpckelly]

18. Then why are there highly skilled well paid public prosecutors?

Because in the system we have, in all criminal matters, the public prosecutor is there for the rich and the poor.

If public defenders were paid as well as prosecutors, and in this system they would actually be prosecutors every other case, there would be the same motivation to become a prosecutor as a defender.

If it became a problem, civil and corporate law bars could put limits on the number of people in those professions.

[Divernan]

26. Public prosecutors are NOT well paid as compared to private attys.

in civil/corporate law. I do know some excellent public prosecutors. It used to be that new attorneys would work for about 3 years for the DA, to build up their courtroom/trial skills, and then they would switch over to civil law to do trial work there. At that point, their salaries would TRIPLE, with the lucrative future of making partner and making about 8 times as much as the top paid non-elective attorneys in the DA's office.

This changed when the number of lawyers graduating skyrocketed and job opportunities plumeted. One of the sharpest guys in my class went with the DA's and ended up staying there. After about 20 years, he's making $60,000 as head of one of the DA's divisions.

That is my explanation of why there are highly competent lawyers/prosecuters.

[originalpckelly]

29. Well if we the people are not willing to pay the people of justice system...

well, then that is our own fault. That might be a part of the drive to unify the pool of prosecutors/public defenders.

[Divernan]

37. Your idealism is admirable; your expectations quite impossible.

You cannot get money from a stone. The undereducated, self-involved, American Idol worshipping American public, combined with the lobbyist-dominated state legislatures, place the welfare of the poor in general, and poor criminals in particular, at the very bottom of their priority list.

The states are in dire financial straits in trying to balance their budgets simply to maintain the inadequate level of public services they now provide with our hard-earned tax dollars. There is no money available for changes such as you suggest, and there won't be for decades.

[originalpckelly]

39. Interesting enough, the middle class is equally screwed or more screwed...

than the poor when it comes to this. There are times when people make enough money by state standards to not qualify for a public defender, but they really can't afford a good defense attorney. This happens to many people in the middle class. So it might actually be an issue they care about.

[Divernan]

49. Voters/taxpayers don't give a damn about this until it affects them personally.

I worked with any constituent I was assigned to help - which included many conservatives. There were several instances where individuals called to scream about laws and proposed legislation that helped people out - lots of rhetoric about keeping government out of people's lives, and everyone should just take care of themselves. Then, surprise, surprise, disaster struck THEM and their families. They got laid off, or their pension plans were cancelled, or they found out their super-duper health insurance had a lifetime limit and their kid's severe,chronic illness had just used up the last of it. Then they called back and hysterically demanded that new programs be voted into place, RETROACTIVELY, to address their needs.

And frankly, middle class people are not driven to crime in nearly the proportion as are the poor and uneducated. What kind of crime do you think middle class people would be charged with? The one crime I've seen a few get nailed with has been DUI, with the RARE manslaughter result. It's maybe
a $1,000 for private representation for a basic DUI. Middle class people can easily afford that.
And frankly, I'd much rather my tax dollars went for birth control programs, pre-natal nutrition programs, pre-school programs, subsidized child care for poor working parents, and keeping the tuition costs down at state schools, than in representing some alcoholic. And speaking of drunks, the experience in the criminal court system is that there is nothing short of incarceration to keep drunks from driving to their local bars/liquor stores. You can take away their drivers' licenses but that doesn't stop them from driving.

[originalpckelly]

54. So it isn't you think others won't care, you don't care.

You don't think you're going to affected, do you? "Oh fuck the poor, who cares about them anyway?

I don't have to worry about poor people, because I'm never going to be poor, right?"

You never know how life will change for you, in a moment you could go from your comfortable life to the streets. You may not realize it, because it has never happened to you, but it does happen to many people around the country.

[Divernan]

61. Back off, kiddo! And don't put words in my mouth.

I have always done a LOT of pro bono legal work for poor and elderly. I have never done any for drunk drivers, and that's who I was relegating to the bottom of people whom I want to see helped by tax payers' scarce dollars.

Your personal attack on me is irrational. It makes as little sense as if I accused you of not caring for all the non-criminal poor who desperately need housing, health care, and food for themselves and their children.

You're long on rhetoric, but you don't respond to facts provided by posters who have kindly taken the time to discuss your original post. Sounds like you want a whole long chain of posts saying, "Brilliant!"

I repeat for the umpteenth time, you will not get the popular vote necessary to support your program. I base this opinion on ten years of working with a state legislature and representatives, and running hearings around my state on a variety of issues and listening to private individuals express their concerns with how their taxes are spent. Do you have ANY studies, or personal experiences to support your belief that the public or politicians would agree with you?

[AndyTiedye]

69. Public Transport Might do More to Curb Drunk Driving

[Raskolnik]

30. Are you under the assumption that prosecutors make more than publid defenders?

If public defenders were paid as well as prosecutors

In nearly every situation their pay will be roughly equal, with many instances of pd's making more than prosecutors.

[originalpckelly]

33. Not in the federal system...

I am terrible sorry for not being more clear.

In the federal system there is a mandate to pay public defenders and prosecutors equally. However, in a ton of smaller local jurisdictions there are variances between public defender pay and prosecutors.

[Raskolnik]

35. I'm sorry, but you're misinformed.

However, in a ton of smaller local jurisdictions there are variances between public defender pay and prosecutors.

I'm sure there are some small variations here & there, but there is *no* general trend that prosecutors are more highly paid than pds.

[AngryAmish]

76. Around here public defenders make mor ethan the prosecutors

[originalpckelly]

77. It's my understanding that depending on where you live...

you may or may not have a good public defender. Some states actually give a damn about the accused and have done so for a long time, so the infrastructure in is place there.

At the federal level, it is my understanding, that prosecutors and public defenders are paid the same amount of money.

However, the universal inequity appears to be that the defenders do not have access to the same investigative team that prosecutors do. This is the problem.

[Raskolnik]

91. Could you point out a source for that?

the universal inequity appears to be that the defenders do not have access to the same investigative team that prosecutors do

I'm not doubting you, of course, but your statements on this thread do not seem to be grounded in any sort of factual basis thus far.

[Raskolnik]

20. You need to spend a little more time around public defenders

you had better be able to afford a private lawyer if you are accused of a crime because otherwise you are totally screwed

Some of the finest defense attorneys I've seen have been public defenders. Some of the most incompetent defense attorneys I've seen have been private attorneys.

[pitohui]

21. no thanks

i have reason to be bitter, see my previous post abt my neighbors

there may be find public defenders in some other area but i would not trust to this rare and endangered species in southeast louisiana

people are lost in the system for months...or years...without any defense

[Raskolnik]

31. So you make a sweeping statement because...

...your neighbors didn't get good representation from a pd?

Upon what else do you base your statement?

[Hamlette]

23. gee, that doesn't describe the public defenders in my state

yeah, we were underpaid and overworked but we were young and idealistic and we worked our butts off. We spent way longer than 20 minutes per case. I would also point out that in 5 years I only had one innocent client. And the charges were dismissed immediately. Many were overcharged and we got many others off.

In my state, PD jobs were the most sought after when we were in law school and attracted some of the best and brightest from our class. The pay was low but more than we'd ever made in our lives and not that much less than the prosecutors. Who were an honorable lot. My bitch was with the police. Some of them were less than honorable. And the prosecutors knew it and discounted what the bad ones said/did.

Perfect? No. But some people are guilty. And some people need to be kept away from me and mine.

[pitohui]

25. yeah and some people are not guilty

you can't look me in the eye and say you'd settle for a public defender if you could afford a private lawyer, nobody would, it would be tantamount to suicide

how much more DNA evidence do we need to understand that, under our current system, the guilty regularly walk free and the innocent are railroaded, it happens every day that another miscarriage of justice is announced after some poor soul has already lost years or decades from his life

if you are accused of a crime, better to forget about political correctness and be prepared to fight for your life because the jury system don't work, innocent people who are not prepared to plea down to bogus charges are routinely convicted and then punished severely more for the crime of not taking the plea than anything else...

[AngryAmish]

78. Just because your area sucks in this regard do not condemn everywhere

Change the system in your area if you can. Yes, people walk who shouldn't and the innocent do go to jail. But by and large the system works.

[Hamlette]

100. every person I would hire now was a public defender

DNA is only relevant in a small percentage of cases but yes, where it is relevant it should be tested.

I do not agree that "under our current system, the guilty regularly walk free and the innocent are railroaded". Yes, it happens, and yes, there are horrible abuses but not everywhere.

I never saw anyone punished more severely for not taking a plea. Never.

Remember, when you see a story about someone falsely accused it is: 1. inexcusable, and 2. a story because it is not that common.

After 5 years I represented one person I knew was innocent. I knew it because the jailer called me, the public defender, with the evidence. The minute I called the DA with what the jailer told me, the charges were dropped and the jailer's identity protected from the cops.

During that same time, 75% of my clients swore they were innocent.

We are not talking about you and me getting accused of crimes. Although that is frightening and could happen. We are talking about reality. Where cops and prosecutors want to prosecute criminals, not the innocent.

[Toots]

80. Are you advocating for a private police force??

Think about it a bit....

[Mz Pip]

3. There are private prosecutors

Aren't those the people who bring suits against corprations, drug companies, negligent individuals? Wouldn't they be called prosecutors? They are the attorneys for the plaintiff as opposed to attorneys for the defendants.

Mz Pip
:dem:

[Divernan]

17. You're confusing civil cases with criminal cases.

The OP is talking about the criminal courts: private defenders for individuals charged with crime and being prosecuted by the local district attorneys' offices. There, the standard for burden of proof is "beyond a reasonable doubt"

Suits against corporations, drug companies, negligent individuals are primarily in civil courts. In civil court, the standard for burden of proof, is "more likely than not", i.e, more than 50%. In civil cases, both parties have private attorneys, with the exception of a narrow area of civil law where Neighborhood Legal Services provides free representation to the very poor.

[nashville_brook]

4. prosecutors are agents of the state -- defenders are agents of the people

[originalpckelly]

6. In a democracy the people are the state...

In our system of jurisprudence, The People are the prosecutors.

In the British system, or any commonwealth system, The Crown is the prosecutor.

[nashville_brook]

14. uh -- this is stupid -- an agent of The State is also an agent of The People

[originalpckelly]

19. Excuse me? Last time I checked America was supposed to be a democracy...

and in a democracy the people are the state.

[Name removed]

22. Deleted message

Message removed by moderator. Click here to review the message board rules.

[originalpckelly]

27. What is so unreasonable about that?

The people are the state in a democracy.

You know, that old phrase from Lincoln, "of the people, by the people, for the people."

This is our government, not anyone else's.

It's not like a monarchy where the government derives its powers from the sovereign (the king or the queen.) We the People are the government of the USA.

There is no separate State. WE ARE THE STATE!

[tkmorris]

7. Precisely right nt

[Divernan]

9. Quite right - the criminal defense system is inherently unfair.

I clerked one semester of law school for one of the most successful private defense attorneys in town. He had advertised on the law school bulletin board for someone to research some constitutional law issues for him. Turned out he represented the pornography/prostitution interests, and the research had to do with freedom of speech matters.

This was a guy who had graduated from Harvard Law School and idealistically hoped to represent the poor who turned to crime to survive. As he explained to me, his first years of practise, he represented hundreds of poor people, and he couldn't make enough to survive. He learned that successful criminal law attorneys only represent successful criminals. He subsequently turned to representing criminals in areas of what he considered victimless crimes, which in other countries/societies were not considered crime at all.

He was particularly bitter about the snooty, snotty, business & civil lawyers from the major law firms in town, who would cut him dead in court or the streets, but would call him to get porn films/prostitutes for their clients' and their own use. Those few months were the extent of my involvement in criminal law - I practised civil and administrative law when I became licensed.

Our present public defender system is abysmal - the attorneys there are greatly burdened with huge case loads, and there is incredible pressure for innocent people to plea bargain and get minimal sentences or probation, rather than risk long, mandatory sentences. As lengthy the delays now are to get to trial, the court system would break down completely were it not for the plea bargains.
Many people who plea bargain have no idea how the fact of a guilty plea will follow them for life and preclude many employment opportunities. Even the fact of being arrested, notwithstanding that charges are dropped, is enough to block a security clearance.

I think the even more eggregious areas where the public needs free representation are in the civil and family law areas.

[Manifestor_of_Light]

10. IN Texas

In TX we don't have a public defender system. Private lawyers represent indigent defendants and the ones who roll over and cop pleas get appointed more often. Therefore get paid more often. Hmmm, wonder why??

Even in TX, Criminal District Judge Mike McSpadden, no softie, is griping out his persecutors publicly in the paper in an interview, saying that he's tired of them prosecuting cases with trace residues of drugs. This happened when I worked at the courthouse, and it's been going on a long time.

The lab report says, "The sample was so small it was consumed by the test".

But hey this is the Wild West.

[madmusic]

15. Ah, because it's better than nothing?

Some are actually very good though all are overworked and underfunded. It wasn't all that long ago we didn't have a right to an attorney.

The Crime Beat: The Right to an Attorney
By Dave Krajicek

Clarence Gideon, 51, an indigent barfly, was arrested June 3, 1961, for a break-in at a pool hall in Bay Harbor, Florida.

His pockets bulged with $25 in coins when he was nabbed. Cops said the money came from jimmied pool hall coin boxes.

Gideon swore he was innocent. He said the coins were winnings from a poker game. Destitute, he asked that a lawyer be appointed to represent him, at taxpayer expense. A judge ruled he was not entitled to free legal advice because the burglary was not a capital offense and Gideon did not qualify as a "special circumstances" suspect; he was neither illiterate, feebleminded nor a juvenile.

Forced to represent himself at trial, Gideon was convicted and sentenced to five years in prison.

Behind bars, Gideon read law books and decided the judge had violated his right to "due process of law" under the 14th Amendment to the Constitution.

Gideon used prison stationery and a pencil to ask the Supreme Court to consider his simple complaint: that he had asked for a lawyer and didn't get one.

more, and interesting: http://www.justicejournalism.org/crimeguide/chapter01/sidebars/chap01_xside3.html

EDIT:

Does this answer the question?

No.

Then why post?

I was sooooooooo confused.

[Wiley50]

16. Uh, You really don't want to go to Court with only Public Defender

Just ask anyone in prison

[originalpckelly]

24. Is it that hard to understand?

If the public defenders were as equally skilled and well paid as prosecutors, as they would be under the proposed system, wouldn't that eliminate any unfairness?

If there is one pool of lawyers, all of which must spend 50% of their court room time as prosecutors and 50% of their time as public defenders, wouldn't that eliminate any advantage for the prosecution?

At the same time, because you'd have to make all lawyers involved in criminal trials public employees, it would eliminate private defense attorneys. That would also eliminate any advantage rich people with lots of money have over poor people, because all of the people in a jurisdiction would be subject to the same defenders no matter their income.

The rich would have an incentive to pay the public defenders of all people in a jurisdiction better, so that they the rich would have a good lawyer in court.

Just like right now with prosecutors.

[Divernan]

32. The taxpayers would revolt at the increases in income/property tax

necessary to pay for your proposed system. As several posters have noted, at present, the public defenders often do less than an hour's preparation before standing up in court on behalf of their clients. There are no funds spent to track down and prepare witnesses, to visit the crime scene, to hire private investigators, to hire psychologists, etc. That's one reason why at least 30 percent of people incarcerated in the US are seriously mentally ill or retarded and should be in non-penal institutions instead of jails and prisons.

Your proposed system has great merit and would tremendously improve the chances of justice being served. There has never been a political will to risk the taxpayers' wrath on this issue. Now, given the financial debacle of Iraq and our ever growing national debt, there will never be enough money around in our lifetimes for your program, or any of the other programs such as universal health care, free post-secondary education, maintaining our infrastructure (roads, bridges, etc.).

[originalpckelly]

34. Quite frankly, I think that if most Americans knew of the inequities in our system...

and that they could end up on the wrong side of the inequity, they'd be willing to go out for the increased taxes.

[Divernan]

44. Not in my state (Pennsylvania)

I worked with/for the state legislature until just a couple of years ago - and there is no way in hell that either the Dem or Repub legislators would want to be identified with legislation which benefitted "criminals". I taught Criminology years ago, and don't have the textbook handy, but recall a diagram estimating the number of people who broke the law, versus those who were identified, caught, arrested, tried, convicted, and/or served time. I recall it was something like 5 percent who ended up behind bars. As another poster who worked as a PD stated, all but one of his clients were guilty. Taxpayers/politicians are FAR more likely to put tax dollars in programs providing health care to seniors and kids; Head Start type programs, subsidizing state colleges, emergency services, bridge/highway repairs. As I posted elsewhere on this thread, reforming the criminal law system is at the very bottom of their to-do lists.

[originalpckelly]

46. Maybe it should be the duty of America to put it at the top.

There should be no form of inequity in our justice system if it can be prevented.

[Divernan]

50. Give me one practical way to pay for this plan.

Where will the money come from. Hey, you DUers in California, can you see a proposition to fund this being successful in your state?

[Occulus]

87. How about a different plan?

I agree that the funding for what he's talking about would never ever be there, but... most people see "having to get a lawyer" as an expense to be avoided at all costs. It's very easy, after all, for those costs to spiral into the tens of thousands of dollars, and one often doesn't see it coming- whatever 'it' is they're going to court for.

So why is it so hard to defend oneself? Why not make self-defense easier? If we look at how legal language is written, the assumption that everyone knows the laws they live under, and the presumption that those laws are understood, becomes patently ridiculous on its face. Yet, somehow, that is precisely what is required even of high school dropouts in this country. That's unfair, cruel, and ruinously self-destructive to this country, and while things like assault or murder may be understood by nearly everyone, that's not true for all laws; this goes right back to people not understanding (or being able to understand) the laws as written- or even the fact that those laws exist in the first place.

Why not make law easier to understand for the general public when the law is written? If we're going to argue that the English language is not sufficient to use exclusively in our written legislation, why use it in the first place? That's clearly not the reason why. Well, are legislators lawyers, then?

Why, yes, in fact, many of them are lawyers. They wouldn't write and pass laws written such that only a lawyer would understand it... would they?

:)

I think the law itself is the problem; not that the law is wrong, but that there is too much law, often with too obscure meaning; the public has the right to defend itself, but we can't. We just can't. It's a pity, too, because it should be somehing possible and laudable, and not foolish.

Or is it not the People, but the lawyers, who are passing the laws? Something is Not Right with our legal system. Why not look at where the rubber hits the road- legislation itself?

[originalpckelly]

90. I think you have a great point there...

How can people possibly know they've broken the law, if they are incapable of understanding the law?

[Divernan]

102. You are right - the legal system IS a large part of the problem.

I have found that engineers in particular want to represent themselves. They believe that they are smart enough and experienced at following directions in a painstaking manner, such that they should be able to navigate the legal system.

And I think many of them COULD. The problems are (1) the myriad local procedural rules which vary from county to county, state to state, federal district to federal district and (2) judges go absolutely apeshit at the thought of having someone represent themselves. The reason for #2 goes back to #1 - non-lawyers do not have a grasp of the intricate local procedural rules, and thereby slow down the whole system while the judge has to educate them on the law. Judges labor under heavy caseloads and backlogs and tremendous pressure to rush cases through the system. To judges, non-lawyers increase the backlog. There has been legislation passed in regard to some administrative law courts which specifies that all parties must have legal counsel. I was amazed to see this because my understanding of constitutional law is that everyone has the right to represent themselves in any court in the country. I would love to see someone challenge these admin. law regs, but the sad fact is that such a challenge would cost maybe $50,000 - and the administrative branch of govt. would fight it tooth and nail.

My bottom line with clients, friends and neighbors who are furious over some matter and want to sue someone, is simply this: our judicial system is slow and expensive, and often seems to come to unjust decisions for a myriad of reasons: the other side's atty. plays golf with the judge, or clerked for him/her, or went to the same law school, or works with the judge's former firm; one person on the jury takes a personal dislike (racism, sexism, ethnic biases, to name a few) to a party and influences the jury; the other side's expert witness is more likeable than your expert. Therefore, particularly in civil cases, unless you want to stress yourself out for 2 or 3 years, and spend thousands in legal fees, choose arbitration or in some manner privately work out your problem with the other side. Arbitration with 1 to 3 arbitrators works better(much cheaper and faster) than the trial system. It's only available in civil matters - not criminal matters. There, the analogy would be to plea bargaining - and it is such a travesty when innocent people plead guilty out of fear and from pressure from their crim. defense lawyers. That guilty plea follows them for life and can have terrible impact upon their employability.

[Raskolnik]

38. You are working from faulty assumptions:

If the public defenders were as equally skilled and well paid as prosecutors

They already are.

If there is one pool of lawyers, all of which must spend 50% of their court room time as prosecutors and 50% of their time as public defenders, wouldn't that eliminate any advantage for the prosecution?

I say this with all due respect, but that statement shows that you don't really understand how the system works. There are a hundred reasons why that proposal is absolutely, completely, and totally impossible.

[hughee99]

55. I understand what you're saying, but I don't think it would actually work...

First, I don't know that rich people would have all that much incentive to put a lot of money into this system. Given the 50/50 nature of your proposal, there's every bit as much likelihood that the money would result in getting a more competent prosecutor working against them as there is that it would result in getting a better defense lawyer. If they HAD to have a public defender, and the prosecutors and defenders didn't switch sides, you could at least see where they would see how putting money into the overall quality of the public defenders would benefits them.

Second, if all the criminal attorneys (defense and prosecution) came from the same pool, paid for by public funds, then there salaries would probably be pretty comparable all around. Some criminal defense attorneys make A LOT of money, and I suspect for many, the money available in civil law would be far too enticing to stay in criminal law. This would reduce the talent in the pool. IMHO, the criminal justice system, though far from perfect, works best when good, talented and honest defense attorney's and good, talented and honest prosecutors are involved. The weaker the skills of one side (the other, or both), the less chance that justice will actually be done.

Third, some people have a passion for one side or the other (prosecution or defense), and they excel at the skills necessary for their jobs. It's important that whichever side they're on, they believe in what they're doing, if they don't, you may not get the effort or the quality you would expect. In high school (granted it's not a great example), we would often have debates in my social studies and government classes. My professor, though, would select the topic and then assign people to each side. You didn't usually get to pick which side of the argument you were on. I always tried my best, but in situations where I believed in my argument, I was always far more effective than in situations where I had to argue my side, but personally believed that the other side was right.

I see where you're going, I agree that something needs to be done, and I'm not trying to be difficult, I just don't see your proposal as being very effective if put into practice.

[Raskolnik]

28. Baloney. n/t

[Patsy Stone]

36. Capitalism

That's why. You can buy whatever you can afford. Is it unfair that some people can buy a Maserati? Sure, but it's not illegal. There are haves and have nots, and having has its benefits.

If the Congress was to outlaw private defense attorneys, than everyone who wanted to be a defender would be forced to work for the government. That doesn't make any sense.

Because we have a right to an attorney, most people buy the best one they can. Also, I'm sure there are some pro bono friendly defense attorneys out there.

Factoid: In some states you don't even get a public defender unless you plead guilty first.

[Raskolnik]

41. What state is that?

Factoid: In some states you don't even get a public defender unless you plead guilty first.

Are you sure about that?

[Patsy Stone]

52. Wiki:

http://en.wikipedia.org/wiki/Miranda_warning

Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence:

We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.

Even though this sentence can be somewhat ambiguous to some hapless laypersons — who can, and who have, interpreted it to mean that "you will not get a lawyer until you confess and are arraigned in court" — the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989).

ed: I do not know what the "procedures" are in those states, per se, but it does leave the door open to not provide one until arraignment. I too found it hard to believe, and it may be misinterpreted. At least, let's hope it is.

[Raskolnik]

56. That's not the same thing.

The Wiki entry is about the level of specificity required for Miranda warnings, not the right to a public defender.

[Patsy Stone]

60. I edited my post

It seemed to say that they had no way to provide you with one, except under conditions, which are set by the state and which may go so far as to be interpreted as meaning you must plead guilty in order to exercise that option.

If that's true, then that affects both the right to an attorney, as well as the difference in the Miranda warnings, doesn't it?

If I misread that, I apologize.

[Raskolnik]

67. That Wiki entry is not the best.

Miranda warnings need to convey to the suspect that (1) has the right to remain silent, (2)the consequences of waiving that right, (3)and that he has the right to an attorney, (4)either retained or appointed. There isn't any specific language that has to be used, and cases like Duckworth & Prysock allow some latitude on the way police deliver those warnings. If the warnings link the right to counsel to some future point, so that a suspect would reasonably believe that the right would *only* attach at that point, then there are going to be problems. The "if & when you go to court" language, however, is generally acceptable, because it describes the actual procedure for appointing an attorney. (Sorry if I went on a bit, but I'm kind of a ringer for this particular issue)

All that, however, is a separate issue from *when* the right to have an attorney appointed actually begins. The short version: when adversarial proceedings have begun against a suspect.

[Patsy Stone]

104. Thanks for the explanation

I didn't mind that it was long. :)

[sandnsea]

40. That's all we had originally

Originally, there weren't public defenders at all. The public paid to prosecute people because victims are innocent and can't always afford attorneys for civil cases. Public prosecutors provide equal justice to victims of crime. Judges are supposed to make sure the law is followed, juries are another public element to ensure a fair trial. Public defenders only came about in the 1900's and then for murder trials. It was only in 1963 that the supreme court ruled that anyone with the possibility of a prison sentence was entitled to a public defender.

[welshTerrier2]

42. we shouldn't!

i agree with the point raised in the OP ... the law should treat each and every citizen as equally as it possibly can ...

while a high paid attorney is no absolute guarantee of success, there's something to the old maxim that you get what you pay for ...

the answer to whether layering capitalism on top of juris prudence is inherently unfair is: YES, of course it is ...

[Raskolnik]

45. Why not?

How does allowing the existence of private counsel make the system unfair?

[welshTerrier2]

48. it's more than just private counsel

suppose you and i each are accused of robbing a bank (or whatever) ...

you have millions ... you hire a boy scout troop of lawyers and a few PI's to investigate ... you bring in (and pay for) all kinds of expert witnesses ...

me? i get a public defender (some of them are very good) ... but chances are you'll fare better than i will ...

let me put it this way, if we were both on trial on the exact same charges, whose situation would you prefer?

my view is that wealthy citizens shouldn't get "wealthy citizens' justice" while poor citizens get "poor citizens' justice" ... that is not justice at all ...

[Raskolnik]

51. In your hypothetical, how does limiting my options benefit you?

You're still getting "poor citizens' justice", right?

[originalpckelly]

58. If everyone, including the richest of the rich, receive "poor citizens' justice"

wouldn't they be inclined to work for competent just for all?

The rich would be tied to the poor. The rich, to help themselves, would have to help everyone. Everyone would have the same shot in a court. That's the point, that's the way it ought to be.

Nothing, but a person's guilt or innocence should determine whether they go to prison.

[welshTerrier2]

59. you've hit the nail on the head

that's exactly right ... if the wealthy received the same kind of justice the poor received, the whole system would rapidly see improvements ...

the "least common denominator" argument is not valid because those with money, and hence power, in the society would demand change and would have the clout to ensure that positive change happened ...

[originalpckelly]

64. I'm glad someone else sees it...

I can understand a fair debate about switching prosecutors/defenders (it's actually a pretty fair debate) but the debate about whether there should be private defense attorneys is a pretty damn clear one.

[Raskolnik]

63. "Everyone would have the same shot in a court."

No, they wouldn't. Some public defenders are better than others. Some prosecutors are better than others.

[originalpckelly]

66. In that system the shot would not be based upon wealth...

and in that system, someone rich would be as equally likely to get a bad attorney as someone poor.

On the other hand, it might be possible to make bar examinations more rigorous. (Is that possible? :-) )

[Raskolnik]

68. Once again, you're working from a faulty assumption.

You assume that public defenders are inherently inferior to private attorneys. That's simply not true.

In some situations, a private attorney is preferable. I've seen very good private attorneys that I would love to have defending me if the unfortunate should ever occur. I have also seen very, very good public defenders that have won cases or otherwise represented the interests of their clients in ways that a private attorney would not be able to match.

[mondo joe]

43. Perhaps because we should have representatioon of our own choice?

[originalpckelly]

47. Yes, because as we all know...

the poor really have a choice.

:eyes:

[Raskolnik]

53. How does your plan increase a poor persons choice?

[AndyTiedye]

71. It Doesn't. He Just Wants to See Some Rich People Get Railroaded into Jail

[mondo joe]

72. Your plan does not increase choice for the poor, but does decrease choice

for everyone else.

[originalpckelly]

73. Please explain to me then why it is fair for the poor.

How is that equality? How can it possibly be fair for poor people to have their justice determined by their economic status?

That doesn't sound like democracy, that doesn't at all sound fair.

[mondo joe]

75. How does economic status determine justice?

If there was no provision for people who could not afford representation, that might be the case.

But since there is a provision, how does your argument follow?

[originalpckelly]

79. Why are some lawyers paid well and others not?

You do admit there is a difference in the amount of money some defense lawyers are paid, right? Why would someone rich hire an expensive attorney? Why not hire a cheap attorney?

The implication is that the higher priced attorney is a better attorney. If the implication is true, which it usually is, because a lawyer may present their case history and the number of successes they've had in the courtroom, then depending on economic status one may receive attorneys which are of different quality.

Doesn't that obviously affect the quality of justice a poor person, or even a middle class person, may receive?

[mondo joe]

81. For the same reason that some apples are more expensive than others -

the market and perceived value.

But since no attorney is guaranteed to win, a higher price tag does not = acquittal.

[originalpckelly]

83. True, but of course they have results...

and if they have been highly successful in the past it does indicate that in every way they can help, they are worthy of that extra money.

Sometimes people are guilty, so yes sometimes someone will be sent to prison even if they have the best defense attorney in the world.

It isn't a perceived value, it is a real value.

[mondo joe]

85. Or their success rate might reflect the clients they chose to represent.

Or their more wealthy clients may have brought other forces to bear that would still not be available to low income clients.

You're drawing a conclusion that may not be there.

[originalpckelly]

88. Actually, the ability to investigate is another inequity in our system...

the rich can afford private investigators, whereas the poor or the middle cannot.

[Hosnon]

57. Who exists to hire a private prosecutor in a criminal case?

Theoretically, in a criminal case the State has been harmed - not a private citizen (as in a civil case). The State has hired the Attorney General to pursue all of its claims.

In a sense, the attorney general is a private prosecutor.

Any individual who the State accuses of a crime is entitled to a defense. The State does not hire that attorney, as it is not the interested party (appointed counsel is not the State hiring the attorney...merely paying for it).

Edit: Sorry, I'm having a hell of a time with editing...originally misread the OP.

[originalpckelly]

62. Ever heard of "popular sovereignty"?

http://en.wikipedia.org/wiki/Popular_sovereignty

You are the state, as am I, or any other person in America. All of the state governments in our country must be based off the same principle. So too, local jurisdictions. (Though for that one, I wouldn't be surprised if there are some private jurisdictions.)

If we are the victim of the crime, we have an interest in a prosecutor.

If we are accused of a crime, we have an interest in a public defender.

The interest in a prosecutor is the same as the interest in a public defender: justice.

The People of America have an interest in a fair system of jurisprudence, and that is the reason both parties should be publicly funded. What good is the bill of rights, if the actual implementation of it is not fair?

[Hosnon]

65. The People and a State are not always the same thing. Our entire federal government is

built upon that premise:

The Senate represents the States and the House represents the People.

No private citizen is (legally) harmed when a crime is committed...the State is. You cannot hire an attorney and file suit against someone for murder (you can sue for wrongful death but that is a civil suit).

[AndyTiedye]

70. I Think They Did it That Way in the Former Soviet Union

Don't ever recall hearing of a "Not Guilty" verdict coming out of those courts.

[originalpckelly]

74. In what nation is the verdict dependent on money?

Because, I don't believe America should be the first nation associated with that thought.

Sounds like we are living in some third world country.

[AndyTiedye]

103. Nearly All of Them

Nearly every country permits someone accused of a crime to hire his own lawyer.

What countries (other than the former Soviet Union) use the system you propose?

[AngryAmish]

82. Ever hear of the Star Chamber?

They had that system. It did not work.

[Freddie Stubbs]

86. The accused have a right to choose their own counsel

Why would you want to deny the accused that right?

[originalpckelly]

89. Why not allow people to choose their public defenders?

Don't people have the right to equality when it comes to the court system? What good is the Bill of Rights if it is dependent upon how much money a person has?

[Raskolnik]

92. Ok, how would *that* work?

Seriously, how do you propose we implement a system where defendants can pick & choose the public defenders?

[originalpckelly]

95. Provide defendants with information about the case history...

of a defender, and then let them choose. If a defender already has too large of a case load, that would be the limit to the system.

But that limit wouldn't apply based upon economic class, but random success.

[Raskolnik]

97. What does "case history" mean?

Win-loss ratio? Average sentence? Number of wins for guilty clients? Number of wins for innocent clients? Average plea negotiated for clients? Q-rating?

[originalpckelly]

98. Win-loss ratio.

It is true that someone can pick and choose clients, to make their record look better, but in a merit based system that wouldn't happen. The win/loss ratio would be an honest measure of an attorney's skill, so much as that would matter in case.

In the early years of the system, it would obviously not be as easy, so a more in depth history containing the facts of a case v. the outcome of a case would have to be available for people. One could anonymize the information (defendant x, victim y), so that the defendants wouldn't have their privacy violated.

[Raskolnik]

99. You're just wrong about that.

The win/loss ratio would be an honest measure of an attorney's skill, so much as that would matter in case.

Criminal law isn't like Matlock. The overwhelming majority of defendant's are guilty of at least some crime. Many of those defendants are over-charged. This creates a situation in which win/loss ratio is practically meaningless.

Let's say defendant X punches a guy in a bar, and is charged with attempted murder. His defense attorney successfully negotiates a plea with the prosecutor that reduces the charge to simple assault and results in X being placed on one year of probation. The attorney didn't "win" the case, as you would measure it, because her client was convicted of a crime, but she absolutely represented the interests of her client and got the best outcome possible for him. How do you propose measuring that success in a "case history"?

How much time have you spent around the criminal justice system?

[Freddie Stubbs]

93. What part of the Constitution guarantees 'the right to equality?'

:shrug:

[originalpckelly]

94. I could understand arguing for inequality, or really capitalism...

in any part of life other than the law.

Why shouldn't laws apply equally to all Americans?

[Raskolnik]

96. If you were accused of a crime, you wouldn't want equality--

--you'd want every advantage you could get in the system. You'd want the best attorney, you'd want the most sympathetic jury, you'd want the most lenient judge, and you'd want the least tenacious prosecutor. And you'd be completely reasonable for wanting all those things.

Some people want to spend their own money to get the advantage of the best attorney. Sometimes that's wise, sometimes it isn't. Who are you to make that choice for them?

[Freddie Stubbs]

101. You are confusing equal rights with equal outcomes