ARRESTED: Getting an attorney

  • Thursday, September 26, 2013

Editor's note: This is a continuation in an occasional series of stories on understanding the criminal justice system.

You've seen it a thousand times in TV and movies: Accused bad guy gets arrested and taken downtown, and, when the cops try to talk with him – “I'm not talking without a lawyer.”

So where do you get a lawyer?

If you have the financial means, you can hire a private attorney who is licensed to practice law in your state. Just call them while you're waiting on in the holding area of the detention center. If you're low on money or don't have a job, remember, you still have the right to an attorney. If you cannot afford one, one will be appointed for you.

During your bond hearing at the detention center, the judge will ask if you would like an attorney, if you can afford one or if you need one appointed. If you need one appointed, that's where the Second Circuit Public Defender's Office comes into play.

Who gets a public defender?

According to Second Circuit Defender Grant Gibbons, there is a non-refundable $40 fee for screening for a public defender. Who qualifies for a defender is determined by the U.S. Department of Health and Human Services' Federal Poverty Guidelines, which are used to determine indigency in circuit and family courts.

The judge will ask if you're working, how much you make and how many people live in your home, according to Gibbons.

The number of people in a household and the annual household income are taken into account. For example, a household of one person would need an income of $11,490 or less in order to qualify; a household of two people would need a combined income of $15,510 or less. The guidelines go up to a household of eight people.

If a judge says you are qualified, he'll mark the paperwork and send it to Gibbons' office. A paralegal goes to the detention center twice a day and goes through the entire affidavit with a client to make sure the information is accurate.

“If they get through all that and make too much money … he's going to say your'e disqualified and let us know,” Gibbons said. “If you still think he's wrong, then you can make a request to be taken before a circuit court judge, and he'll say whether you can have an attorney or not.”

Sometimes a person's financial circumstances change while they're in jail but before they're bonded out, according to Gibbons.

“Some people get arrested on Friday and aren't able to bond out,” he said. “Well, Monday or Tuesday, boss finds out you got locked up for drunk driving or whatever, you lose your job. Well, you probably are qualified at that point, so they can reapply to the judge.”

If you want to hire your own attorney, Gibbons said to shop around and talk with friends and family.

“Attorneys are getting more and more specialized,” he said. “Some don't do any criminal work at all. Some do just criminal, some will take anything that comes in the door.”

The office

Defendants typically don't have an attorney present at a bond hearing because it's too soon for an attorney to get involved, Gibbons said. Some people bond out and are sent to the Public Defender's Office to complete the necessary paperwork.

The case load for each attorney fluctuates based on the case flow through the system, according to Gibbons.

First appearance, and so on

At the bond hearing, the judge will give a defendant what's known as their “first appearance” date.

“A lot of people think that means that's when your case is going to trial, but it doesn't,” Gibbons said. “Your first appearance is basically going to make sure you've got an attorney, you've got your discovery coming in, you understand what's going to happen. They want to make sure everything's on track.”

The second appearance is typically a couple of months later.

“By that point, they want you to have an idea of whether your case is going to go to trial or whether you're going to work something out,” Gibbons said.

The first and second appearances are calendar-driven and are not based on the type or severity of crime a person has allegedly committed.

“They go out x-amount of days from your arrest date, whether it's murder or shoplifting,” Gibbons said.

The number of times and frequency an attorney meets with their client varies from case to case.

“If it's a real serious case with a lot of issues, we may meet with them 20 times,” Gibbons said. “If it's a real straight-forward, easy case, we may know after the first visit what we want to do, what we need to do. It just really just depends on the facts.”

Attorney-client privilege

Gibbons said clients often don't understand the boundaries of attorney-client privilege, which keeps certain communications between an attorney and client confidential.

“A lot of people will bring Mama or the girlfriend or boyfriend, and they get kind of upset when we want to talk to them alone,” Gibbons said. “But they need to understand if Mama's in the room, there is no attorney-client privilege anymore.”

Defendants also shouldn't look at other people's cases and use that as a guide for their own.

“'I have the same charge as so and so, but I read in the paper he got probation. Why do they want to give me five years in prison?'” Gibbons said hypothetically. “Well, he may have worked for law enforcement, there may be evidence problems in his case. He may not have a prior record. You really can't compare the two together.”

Teddy Kulmala covers the crime beat for the Aiken Standard and has been with the newspaper since August 2012.

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