Tuesday, March 18, 2008

Gideon - 45 years old today

45 years ago, Justice Black issued the famed decision in Gideon v. Wainwright. One would have never suspected then that the right to counsel would be an issue in white collar cases.  One has to wonder whether the high cost of legal fees makes it difficult for many facing these complex cases to receive the representation that they deserve.  An accused may be too wealthy to secure a public defender, but too poor to secure counsel that can spend the time examining the many documents that may be found in something like a fraud case.  In no way diminishing the need for proper indigent defense, something needed in so many parts of our country, it is also important to note that white collar cases raise new issues with regard to securing proper representation for the accused individual.  [See, e.g. Stein (KPMG) case]

(esp) (w/ a thank you to IntLawGrrls Blog for reminding me of this historic day).


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Should the rule be, "You may utilize all assets within your estate to pay for your defense, no matter what the source of your assets or the validity of any third party's claim against them, including but not limited to any civil or criminal claim presented by the government"?

While the cost of defense may be higher, being short of money to pay for "the best criminal defense" isn't something unique to white collar defendants. That remains true even if you can "afford" counsel.

As you know, it's no panacea to qualify for a court-appointed lawyer - as you know, many court-appointed criminal defense lawyers are paid a pittance for their services. Even when a professional public defenders office is available, the office will have limited staff and resources. Many court-appointed lawyers have to fight to get fees (or live with having their fees cut) when a court administrator or judge deems some of the services they rendered "unnecessary". Try convincing a state criminal court to pay for experts or investigators - and if you win the argument, try getting them to authorize funds sufficient to retain the help you actually need.

If the issue is the government freezing the defendant's assets, such that they cannot spend as much as they like on lawyers, how would you draw a meaningful distinction between a white collar criminal case and a case involving a successful drug dealer or a mobster, whose assets may similarly be frozen? If the answer is, "We don't, and shouldn't need to" - a reasonable response - I am skeptical that your argument will get much sympathy from the nation's courts and legislatures.

Posted by: Aaron | Mar 19, 2008 7:17:21 AM

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