Yo Matt: What do I do if I have to go to trial and can’t hire a lawyer, but don’t want a public defender?
Yeah, so…no. Don’t even consider going to trial without a lawyer. I’d suggest that about as much as I’d suggest letting your drunk Uncle Pooty Poot perform your emergency appendectomy with his rib-cutting knife while drinking Crown and Cokes and reenacting the fight scenes while watching Dolemite (which is not at all).
The potential outcomes of a criminal case include incarceration, fines, probation, and convictions that follow you forever and may determine your ability to live certain places, associate with certain people, hold professional licenses, vote, and find employment. As such, it is imperative that at every stage of the process — from arrest to announcement of the verdict — you be thinking about what puts you in the absolute best position to beat the charges or ultimately lessen punishment. And that will always be requesting, conferring with, and listening to a lawyer.
A few things to think about:
- Public defender ≠ “bad lawyer.” There’s a common misconception that all public defenders are fresh out of law school, borderline incompetent, or generally less effective than “free world” (read “privately retained”) lawyers. This could not be further from the truth. Some of the lawyers I look up to and have learned from most are current or former public defenders or private attorneys who take court appointments (as do I). And all those I know personally work just as hard for their appointed clients as they do for their retained clients. Public defender offices like The Public Defender Service for the District of Columbia are highly prestigious, highly selective agencies whose lawyers are highly sought after, highly respected advocates. So first, let go of the idea that a public defender cannot or will not work tirelessly and effectively for you, because it’s wrong (and this is one place where you gotta be right). That isn’t to say there aren’t myriad issues facing public defenders and their offices, like insanely heavy caseloads, chronic budget shortfalls, and sometimes, inexperience. Despite these often unfortunate realities, many public defenders are fantastic, committed lawyers whose expertise and experience may be all that keeps you from having a cat that looks like Nasty Nate “waitin’ on you at the do’” of your cell. To that end…
- Public defenders know WAY more than you do. (And the goons from ‘round the way too.) A “free” lawyer is still a lawyer. And you aren’t one. That should be enough to make you realize you should at least consult with a lawyer before trying to represent yourself. (But you aren’t crazy, so you aren’t going to do that, remember?) Seriously though, any lawyer practicing in these United States went through at least seven years of schooling (typically four years for undergrad and three for law school) before undergoing several months of grueling preparation for the bar: the life-sucking licensure test equivalent of a three day-long Thai prison caning. Not to mention the time spent in clerkships and internships preparing them to practice law. So yeah, they know a LOT more than you do. Public defenders often must show themselves qualified before even being assigned big cases. And what they know that you don’t is stuff the court will treat you as though you know if you try and represent yourself. You’ll be required to adhere to rules like the rules of evidence, criminal procedure, and professional responsibility. Sure: you can study all those things, but you’re at a significant disadvantage against a prosecutor who not only knows all of those things, but utilizes them every day. It’d be like fighting Kimbo Slice with both hands tied behind your back; just doesn’t make sense!
Relationships play a big role in the criminal justice system, for better or for worse. A public defender or other lawyer likely has relationships with the prosecutor, the probation department, and others involved in the process, which may make all the difference in the resolution of your case. It really is not always what you know, but who you know.
3. You can still retain a private attorney AFTER meeting with a public defender. Most counties/states require you to provide an affidavit attesting to your finances and resulting inability to afford a private lawyer, so be honest about your money situation. That does NOT mean, however, that once you’ve been appointed a lawyer you have to stay with that lawyer. If you come into money — from a tax return, a family inheritance, or that mooching friend of yours finally pays you back — you can hire the lawyer of your choosing. Texas law affords an indigent defendant the right to have their court-appointed lawyer for at least 10 days prior to a dispositive hearing. That ten days (and the comparable time surely provided by other states) provides an opportunity to become acclimated with your public defender and determine if you trust them to handle your case or might want to seek other counsel.
There are also situations where you can be appointed a different court-appointed lawyer than the original lawyer you’re assigned, typically for “good cause.” I was recently appointed on a high-profile case where the original lawyer — a well- regarded, highly capable, strong trial advocate — was removed because of communication issues between him and the client. I have also had clients to whom I’ve been appointed retain private counsel of their choosing after I’d met with and counseled them about their case. The flexibility to ultimately hire the lawyer of your choosing after appointment provides you the fail-safe of at the very least having someone rather than no one in your corner.
There’s an old adage attributed to President Abraham Lincoln that applies here: “He who represents himself has a fool for a client.” He couldn’t be more right: it’s frankly foolish to try and represent yourself. The likelihood it will be detrimental to you is exponentially greater than the likelihood you’ll effectively deal with it on your own or that a public defender will screw it up more than you would. So, do the RIGHT thing and exercise your Sixth Amendment right to counsel. You’ll be glad you did.
Matthew (Matt) S. Manning is a lawyer primarily representing citizens accused in the Lone State that matters, Texas. A graduate of THE Howard University and the University of Toledo College of Law, he is also a multi-instrumentalist and composer, and, like you, struggles valiantly at successfully “adulting.” Should you have any questions (to which he undoubtedly knows the answer), feel free to email him at email@example.com or tweet him at @ManningLaw. #manningofthepeople