If You Desire to Have an Attorney and Cannot Afford One, ....

[rust collector]

Federal Public Defender did an excellent job getting a pro 2A decision from a 9th circuit panel:
https://law.justia.com/cases/federal/appellate-courts/ca9/22-50048/22-50048-2024-05-09.html

 

[RetiredUSNChief]

NOT an attorney here, to get that up front. I'm retired Navy and currently a nuclear engineer.

HOWEVER...I have had a rather unpleasant dealing with the UCMJ that lead all the way up to an Art. 32 (essentially, the military equivalent of a grand jury) involving my first wife while I was still in the Navy. So I have some experience on the matter of the "right to keep silent".

Be that as it may, my comments are my own and not intended to be anything other than that.

For those of you who don’t know me on this forum, I tend to get “wordy”. Bear with me and I’ll try to keep on point.


We have a right to keep silent...and as has been pointed out by @Spats McGee, few have the ability to exercise it. The "why" of this is human nature, and the fact that the police are trained (some more so than others) at exploiting this human nature.

People in general will naturally talk to "explain". This is a very human behavioral trait. Ask us a question, we want to respond. Put us in a given set of circumstances and that natural reflexive trait can be leveraged to great effect by the person doing the questioning. Questions can be straight forward, such as "Tell me what happened here". That same question can be phrased subtly different, however, which will significantly affect the average person’s response. “Can you tell me what happened here?” “All I’m trying to do right now is find out what happened. What did you see?” “The EMTs have arrived. Why don’t you go see them and I’ll see how you’re doing in a few minutes?”

“Can you tell me…” is a polite phrasing that doesn’t sound forceful. Polite behavior engenders a level of trust and makes people want to respond.

“All I’m trying to do…” makes the person being questioned think that the officer is “only” trying to find out and not find anything they can use against you.

“Why don’t you go see the EMTs first…” engenders a level of trust because the officer has shown empathy for their care and well being.

All these things, and more (such as a desire to “prove” one’s innocence), act upon our psychological predisposition to talk.

And this even works with people who KNOW they’re either guilty or closely associated with the “wrong side of the law”. They, too, are subject to having their inherent behavioral traits manipulated with tactics tailored to do this based on their own personality traits.


SO…what this means is to exercise your right to remain silent you need to clearly articulate this (being vague and assuming that not talking is exercising this right is NOT enough) and then KEEP YOUR MOUTH SHUT.

The right to remain silent is NOT a selective right. You cannot remain silent on some issues while flapping your lips on others.



“Why aren't the police required to tell you things like…”

Well, quite frankly it’s not their job to educate everybody. Heck, quite often they don’t “know the law” nearly so much as the average Joe thinks they do. And guess what? The police are allowed to lie their keisters off in the course of an investigation. WE, however, do not have that protected luxury. So…exercise your right to remain silent and keep your mouth shut.

Police officers are LAW ENFORCEMENT OFFICERS. That’s their primary responsibility. When they investigate something/someone, they’re looking for ANYTHING that supports violations of the law. They’re not looking to “prove” someone “innocent”. Yes, they’re (generally) pursuing a course that ought to eventually take them to the actual “guilty” party. Most cases it’s obvious. Others, not so.

So…if you’re being questioned in any capacity, REGARDLESS of whether or not you’re being detained or arrested, REMEMBER: ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.

Were you just a bystander/witness that saw something? ANYTHING YOU SAY…

Were you detained by any means? ANYTHING YOU SAY…

And “detained” means “not free to go”. It doesn’t mean arrested and put in cuffs. You are “detained” if the officer does not allow you to leave. If you want to know if you’re “detained”, then ASK. “Am I being detained? Am I free to go?” There are PLENTY of scenarios where the courts may go either way on this, so there should be NO ambiguity here.


There are all kinds of circumstances and nuances here. In many cases, all we’re trying to do is be helpful. A witness to a vehicular accident, for example, wants to be helpful in describing the events they witnessed. It’s hard to argue the “need” for the right to remain silent under such circumstances. This is a choice we must make every time we interact with LEOs, and I’ll certainly not gainsay this.



In the end:

The law (in court) is ONLY “on your side” when being questioned when you explicitly exercise your right to remain silent properly.

Your right to remain silent exists whether you are detained or not and ought to be exercised in either case when you are being questioned.

Clarify by asking “Am I being detained? Am I free to go?”

If you are being detained, and you wish to exercise your right to remain silent, expressly state this and then keep your mouth shut.

If you are not being detained, and you don’t wish to answer any questions, expressly state this and then keep your mouth shut. And then LEAVE if you have no other business there.

 

[Spats McGee]

....We have a right to keep silent...and as has been pointed out by @Spats McGee, few have the ability to exercise it. The "why" of this is human nature, and the fact that the police are trained (some more so than others) at exploiting this human nature....

This, ladies and gentlemen, is why I tell people, "If you're talking to the police, it's a whole lot easier to talk your way into trouble than out of it."

 

[Arkansas Paul]

SO…what this means is to exercise your right to remain silent you need to clearly articulate this (being vague and assuming that not talking is exercising this right is NOT enough) and then KEEP YOUR MOUTH SHUT.

100% correct.
Tell them you are exercising your right to remain silent, and explicitly state that you want to talk to an attorney.
Once you do that, they are supposed to cease all interrogation until said attorney is present.
Another thing we see pretty often is people initially declining to speak with police, but then saying things without even being asked. Even after Miranda rights are conveyed, spontaneous utterances can still be used against you.

Like Spats, I cannot count how many times I have seen someone talk themselves into jail. I can't recall seeing a single person talk their way out of it.

 

[mrbro]

The provision of an attorney, even if one cannot afford it, is fundamental to guaranteeing fair treatment within the justice system. However, the practicalities of accessing this right, as you mentioned, can be complex and may involve delays, especially in obtaining a public defender.

I want to add that federal appeals further underscore the importance of competent legal representation. Appeals often hinge on procedural and substantive legal arguments, emphasizing the need for skilled attorneys who are experts in this complex legal field. The outcomes of these appeals can have profound implications for individuals' lives and liberties, as mentioned here. After the appeal, the sentence can be reversed, or a new trial may be ordered.

 

[Double_J]

Remember that the Public Defender might take some time (days, weeks, months) to get to you. My home state has districts with only 2-3 Public Defenders for 3-5 counties. There are people who have been held for 3-4 months before they get a first visit from their Public Defender, and often the outcome is a plea deal as their is too much work to set up a proper defense.

The cops and prosecutor are NOT your friends, and the Public Defenders office might not be of much if any help depending on their workload. The county I grew up in has several high powered lawyers who volunteer to be P.D. lawyers as they got tired of people being screwed by the system, but don't count on getting an OJ Simpson level defense for free.

 

[DeepSouth]

I'll ad that if you want incompetent (at best, grossly inexperienced) representation then by all means take that free PD or just out of law school wannabe !

I don’t think that’s always true. From what I understand around here every lawyer in the county is given cases by the court, as well as paid by them so you just get who you get when it’s court appointed.

I know a man that went and met with the court appointed lawyer when his granddaughter got in some trouble, he offered to pay him (even extra if need be) and was told their was no need and in the end they were very happy with him, he is/was one of the more popular lawyers in the county. If you ask for recommendations he is one of the two names you will get. Thankfully all my information is second hand and hearsay so I freely admit I don’t really know what I’m talking about

It seems to me the bigger issue (around here) is that if one owns much of anything, or just has a job, then as far as they are concerned you can afford the lawyer, I’ve seen judges break down finances and deny folks that were obviously living well below the poverty line.

.

 

[JTHunter]

The Brady decision required prosecutors to "educate" defense counsel of such information that they could not readily obtain on their own.

Would not that be covered by a "discovery motion"?

 

[JTHunter]

As in "mercenaries" that will do anything for a price.

That is why there is an old joke about knowing the difference between a lawyer and a carp (the fish).

One is a dirt-sucking bottom feeder and the other is a fish.

 

[RickD427]

Would not that be covered by a "discovery motion"?

Not necessarily, a "discovery motion" allows the defense attorney to demand the production of evidence, consistent with the rules of evidence. The problem in trying to use a discovery motion to seek out "Brady Material" is that the defense attorney doesn't know what to list in the motion.

 

[Riomouse911]

I think most people that have drugs in the car and give consent, think the cops aren't going to find their "stash".

Putting your drugs in the glove box or center console, for the whole world to find, isn't stashed.

Same as criminals sitting in the police station, where everything is being recorded, talk openly.

Most are to stupid, let their ego/pride get in the way, to keep their mouths shut.

Cops know that if they get people talking, they will self snitch, without having to do much.

Social Media, and much of societies’ addiction to posting their antics, made cases sooooo much easier to work when I retired in 2023 than they were back in 1991 when I started.

Give a man a length of rope, and he will often hang himself with it. Tik Tok, Instagram, You Tube, etc. is like giving a man ten feet of rope, plus a tree and a horse, too.

As for the earlier PD comments, I also agree that is hogwash. Many very good attorneys work at the PD’s offices all over the place. Most PD offices have the odds stacked against them financially, with investigators limited or overworked, less than stellar defendants and a caseload that is one more foot from burying them completely. Despite this, they do soldier on.

So, just like it is with cops, doctors, contractors, teachers and even shooters; regarding attorneys at the PD’s offices there are great ones, good ones, fair ones…and some that are pretty much a waste of oxygen.

Stay safe.

 

[The Night Rider]

A friend of mine did 7 years for manslaughter. Just to be up front he was guilty. He got in an argument with his girlfriend and according to him he accidentally shot and killed her. He told that story in church multiple times after he was paroled so I'm not carrying tales.

If I understand what I was told correctly they wanted to charge him with murder and he requested a Public Defender.

The PD office did an assessment of everything he owned and either made him sell his home or mortgage it and sell his car and everything else of value and pay for a private attorney and he didn't get a PD until he could no longer afford the private attorney and he had to switch lawyers in the middle of the process.

I said that to say that a Public Defender isn't automatic and they decide if you can afford one not you.

Second thing, the PDs my wife worked with got paid no matter what. They weren't like the private lawyer who dropped my friend when he couldn't pay anymore.

And they personally wanted to beat the DA. I'm not saying it was a game but it was a competition.

The disadvantage was that each lawyer had dozens of cases so they had the kind of allocate their resources to the cases they were most likely to win.

Before I tell this story please remember that it was over 20 years ago so I may not remember it exactly.

I went to visit my wife on her lunch hour. I heard two of The Lawyers discussing a case. Apparently the defendant had a record and the police didn't have any actual physical evidence. Apparently they had actually tested the guy's hands for gunshot residue the night they arrested him and found none. According to the conversation the two lawyers were having the DA had sent them over a plea agreement anyway. The DA wanted the defendant to plead guilty to whatever lesser charge and they would request a shorter sentence.

I heard one of the lawyers tell the other one " SCREW that!" Although the word that she used was much harsher. "We've got a murder trial." And she made it very clear to the person she was talking to that she had every intention of walking into that courtroom and throwing the fact that the DA had no physical evidence right back in his face.

The point to all this blah blah blah is don't assume that just because you have a public defender you don't have a good lawyer or a lawyer who will fight for you.

 

[Arkansas Paul]

The PD did an assessment of everything he owned and either made him sell his home or mortgage it and sell his car and everything else of value and pay for a private attorney and he didn't get a PD until he could no longer afford the private attorney and he had to switch lawyers in the middle of the process.

I know different places probably have a different process regarding this, and you do mention in your post that it was 20 years ago, but it still surprises me.
Here, we do not make any decisions regarding whether someone qualifies for the services of our office.
On the day the defendant finds out he is formally charged, he lets the judge know if he wants to hire private counsel, or if he wants to apply for the public defender. If he chooses the latter, he is handed a one page affidavit that asks if they are employed and if so what their salary is. The judge makes the decision (not really a decision, just sees if they meet the criteria) and appoints our office.

I have been involved in the decision one time. I had a client that got a $5k bond, and bonded out. He then failed to appear and got the bond revoked. He was then given a $25k bond and bonded out. He failed to appear for the 2nd time and was given a $75k bond. He then paid that bond. So he had been out of pocket $10,500 in bond money alone. He could have probably hired a lawyer for under $5k.
I told him what I was going to do before I did it, but when he was called up I asked the judge to relieve the public defender's office from representing him because if he could pay $10.5k in bond money, he could hire counsel. The judge agreed. He continued the case, told me I was still appointed until the next court date, then ordered the person to come back to court with a private lawyer.

 

[The Night Rider]

I know different places probably have a different process regarding this, and you do mention in your post that it was 20 years ago, but it still surprises me.
Here, we do not make any decisions regarding whether someone qualifies for the services of our office.
On the day the defendant finds out he is formally charged, he lets the judge know if he wants to hire private counsel, or if he wants to apply for the public defender. If he chooses the latter, he is handed a one page affidavit that asks if they are employed and if so what their salary is. The judge makes the decision (not really a decision, just sees if they meet the criteria) and appoints our office.

I have been involved in the decision one time. I had a client that got a $5k bond, and bonded out. He then failed to appear and got the bond revoked. He was then given a $25k bond and bonded out. He failed to appear for the 2nd time and was given a $75k bond. He then paid that bond. So he had been out of pocket $10,500 in bond money alone. He could have probably hired a lawyer for under $5k.
I told him what I was going to do before I did it, but when he was called up I asked the judge to relieve the public defender's office from representing him because if he could pay $10.5k in bond money, he could hire counsel. The judge agreed. He continued the case, told me I was still appointed until the next court date, then ordered the person to come back to court with a private lawyer.

I'm in Colorado.

I've never been through the system but I did have enough familiarity with it to know that in Colorado you have to qualify to get a public defender and if you don't qualify you have to pay for your own attorney.

I think they have to set some limit on it or everybody would just apply for a public defender.

This is a pretty well-known YouTube clip

Court Cam: Woman Curses at a Judge (Season 1) | A&E

Stay up to date on all of A&E's premieres at http://aetv.com/schedule.A woman struggles to contain her composure and flips off a judge in this clip from Seas...

youtu.be

I think it was Maryland or somewhere in the North East. ETA Apparently it was Miami

In the beginning of the clip you can hear the judge asking the young lady what her assets are. How much she makes. And then orders her to sell her jewelry and pay for a private attorney.

If you're reading the captions at the bottom of the video at one point the public defender offers to defend her and the judge says no she can sell her jewelry and get her own attorney