Indigent Defense - The Right to Counsel and Do I Need an Aggravated Assault Attorney?
Indigent Defense - The Right to Counsel
Everyone has heard the famous lines on the vast number of police television shows out there and even on "Cops". That line is from the Supreme Court case Miranda v. Arizona, and goes something like this:
You have the right to remain silent. Anything you say may be used against you in court. You have the right to have an attorney present prior to and during any questioning. You have the right to terminate the interview at any time. Do you understand these rights?
The focus of this article today is on the text that is bolded in the above statement-the fact that every person accused of a crime that is facing more than just a fine as punishment has the right to have an attorney present to aid in his or her defense.
Without criminal defense attorneys to help guarantee the accuracy and equal treatment by all involved in the criminal justice system, one could argue that the system would get out of balance and that the State would take advantage of people who do not know their rights or those who for whatever reason, do no exercise their rights-like those set out above.
In Texas, any person who is accused of a crime that carries anything more than a fine only-that is someone facing even one day in jail as a possible sentence upon conviction-and who cannot afford to hire a lawyer may ask the court to appoint counsel at not cost to the accused.
The Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." Gideon v. Wainwright recognized:
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. 372 U.S. 335, 344 (1963).
It is a general principle that competition brings about growth and development. The criminal justice system in the United States is one that focuses on competition. In fact, it has been labeled as an "adversary system." What this means is that the State with all its resources brings charges against an accused, who then may proceed to trial, where a decision as to guilt or lack thereof will be rendered by a judge in a bench trial or a jury in a jury trial.
While there is a presumption of "innocent until proven guilty" an accused without counsel will almost certainly face hurdles and obstacles that may be insurmountable to him or her. And in this regard, all persons, regardless of income level and education, are entitled to have a lawyer to assist with his or her defense. It is through this principle of competition that only the guilty will be convicted, at least in theory.
A criminal defense attorney's role is to require the State to prove all the elements of its case beyond a reasonable doubt and to explain to an accused what options he or she has to resolve a case-along with the potential consequences of each option.
While there are often criminal defense attorneys who advise a client to plead nolo contendere (no contest) to a charge, it may be because he or she understands there is little chance of obtaining a "not guilty" verdict at trial and wants to minimize the punishment imposed on the person. This is usually done through a process of plea bargaining.
When a person is charged with a crime, a defense attorney is the only person whose job it is to fight to protect your rights and should engage with the client to explain the offense the accused is facing, what the possible range of punishment is and what options there are for probation, including deferred adjudication or deferred disposition.
Client's counsel should also explain what rights you have and what to anticipate during each state of the criminal justice process. Then, the attorney should begin to investigate the facts of your case and ensure that law enforcement officers or others involved in the process do not violate constitutionally protected rights.
While it may not be what a Client wants to hear, an attorney's role is to remain objective and to provide advice based off his or her experience in the jurisdiction the charges are filed. This includes explaining possible outcomes if the case is tried. It is possible that the attorney will negotiate a plea bargain with the State on behalf of the client, which means that in exchange for the Client's plea of guilty or no contest a more favorable disposition or resolution may be obtained.
And of course, if the case goes to trial, a criminal defense attorney's role is to protect the Client's interests as much as possible by cross-examining (questioning) State witnesses and protect evidence by objecting to improper questions and offerings by the State.
Also, if the strategy is to present a defense, it is the attorney's job to do that as well. But, the best strategy is to sometimes just remain silent... and this could be due to multiple reasons. Defense counsel should explain this to the Client, but ultimately it should be the client's decision as it is him or her facing possible conviction.
If you cannot afford to hire a criminal defense attorney, ask for the Court to appoint one. Now, there are multiple factors that will affect whether one is appointed. For example, if someone posted bond to get out of jail, many judges are hesitant to appoint counsel because they believe that if a person can afford to pay for his or her release, he or she may pay for counsel. This is not always the case and should not prevent a person from asking for counsel. It is also possible, that circumstances changed from the time of the bond to the time a person is requesting counsel.
You may also ask the magistrate, probably the first judge that you see. If this judge does not appoint counsel, politely insist but do not be deterred if the answer is still "no." Every time you see a judge, ask for counsel. And, do not waive your rights or get frustrated and stop asking. This is an accused's right-one of several. And, this is but one of the principles that separates the United States from so many other countries. I repeat, continue to ask for appointed counsel.
You will have to show your financial status by filling out some sort of form that asks about income and expense. When you go to court, if you do not have counsel, take pay stubs, bank statements, and copies of your monthly bills with you to court, particularly if you have been released on bond. These documents will help the court determine whether you qualify to receive a court-appointed lawyer.
Ask, ask, ask... and ask again to have an attorney appointed.
Sometimes judges and other officials will put off your request for a court-appointed lawyer, usually by telling you to try to hire a lawyer. If the judge asks or tells you to try to hire a lawyer, try to speak to at least two or three different attorneys before your next court date and obtain written estimates if possible. If not, just write down who you spoke to, when, and how much he or she quoted. If you cannot afford the prices the lawyers quote you, you should return to court and again ask the court to appoint you a lawyer. Be prepared to tell the court about your efforts to hire a lawyer on your own.
Never skip court because you can't afford to hire a lawyer, even if the judge said that you had to hire a lawyer before your next court date and you don't have enough money to do that. Just keep asking for a lawyer and filling out written requests for appointment of counsel every time you go to court. Skipping court will lead to a warrant being issued for your arrest and a much higher bond being set, which could prevent your subsequent release. Also, it may result in additional charges being filed for "failing to appear."
To conclude, the right to have an attorney present is guaranteed in both Texas law and the United States Constitution. Be persistent. Be polite. But, do not waive your rights without the assistance of counsel. Rushing through the process will not help you, it is more likely simply going to cost you time in jail or higher fines/community service hours. All those accused have a right to counsel. Know that right and use it!
Dax Garvin, Attorney and Counselor At law is an experienced Austin Texas DWI Attorney.
I graduated from Texas Tech University School of Law in May, 2002, and was licensed to practice law in Texas that November, following the July, 2002, Texas Bar Exam. Prior to that, I obtained my Bachelor of Science in Criminal Justice from the University of Texas at Tyler and my first years of undergraduate work were spent at Austin College in Sherman, Texas, where I learned the true passion of humanity-recognizing we are all part of one great society.
I worked in the Travis County Attorney's Office from August, 2002, until October, 2003, when I entered into private practice with a mid-size Austin civil litigation firm, where I enhanced my skills for legal research, writing, motion practice, and working with insurance companies from the defense perspective.
Do I Need an Aggravated Assault Attorney?
The punishment for an aggravated assault charge is imprisonment from five years up to fifteen years. Life is said to be short so who would like to spend a good part of their life in an enclosed prison cell? So if you are wrongly accused of aggravated assault, you better find yourself an experienced and dependable aggravated assault attorney to defend your case.
If your attorney is aggressive enough and skilled enough, he or she may diminish your sentence if not have it dismissed altogether. In the hands of a reliable criminal attorney, you are sure that your right will be protected and secured in the court of law.
The primary task of an aggravated assault attorney is to guide you throughout the legal proceedings of your aggravated assault case. If you are charged in Arizona or in Phoenix to be more specific, your best choice of attorney is a criminal defense attorney in Phoenix. It is a good move to hire a local attorney as he or she is most likely familiar with the state laws, court system and proceedings.
Local attorneys are more familiar with the judges and state prosecutors so he or she already know how to deal with them and which evidence will more likely strengthen your case.
Having an aggravated assault attorney is essential in your case for he will be the one to explain to you your rights. He will properly explain to you the intricacies of the charge filed against you and its implications. Knowledge is power so you better listen attentively to your attorney and know all the details with regards to your case.
Part of the legal council you can expect from your attorney is to tell you the evidence that the prosecutor can come up with in order to convict you. In short, he tells you what to expect so you will not be shocked during the trial. He should also prepare counter arguments in your favor to convince the judge and the jury of your innocence.
Do not trust an overconfident aggravated assault attorney. Although you need your attorney to have confidence that he can win the case, what is more important is for your attorney to present good evidences and witnesses that will make your case a lot stronger. Remember that the justice system is very complex. Even if you hire a local attorney, he or she cannot predict the precise outcome of the trial all the time.
