Suppose you were convicted of drug possession in federal court. The Border Patrol found marijuana in your trunk, enough to put you away for a long time based on the Federal Sentencing Guidelines. Yet what if that the Border Patrol did not have probable cause to search your truck? What if they forced you to confess without first reading you your Miranda rights? A seasoned federal defense attorney could claim that this evidence is “fruit of the poisonous tree” and get it thrown out in federal district court. Unfortunately, too many suspects lack even an adequate defense attorney. The result is a prison sentence.
A defendant’s last hope in that situation is to appeal. A federal or state appeal is serious business. You need to show that an error of law took place, such as if the judge gave an incorrect legal instruction to the jury. If the panel on the appeals court agrees, your conviction is overturned. More than ever, the defendant needs an attorney who has paid close attention to his case, knows the latest developments in the law, and can make sophisticated arguments.
A skilled private attorney can do those things. But what if you can’t afford to hire an attorney? Then you would be entitled to a public defender. A public defender has the same role at federal or state level, which is to represent “indigents,” or those unable to afford representation. Public defenders can represent indigents in trial and at appeal, though at the state level, they are restricted to just the first appeal. They are also extremely busy. By some accounts, up to 90 percent of criminal defendants at the state level rely on public defenders. This recent article underscores Texas’s struggle to maintain adequate funding for legal aid. Because of insufficient resources, no matter how skilled and dedicated a public defender may be, he is often overwhelmed by cases. This is a problem, because then he cannot give adequate time to each case. As a result, important details could get missed that mean the difference between freedom and incarceration.
Many people charged with a federal or state crime might qualify for a public defender but really want to hire their own attorney. Even if it is a strain, if you can possibly afford to, hire a private attorney. First, a private criminal defense attorney can devote more time to your case. He or she can pursue all possible defenses, move to suppress evidence, and preserve error for appeal or even a post-conviction writ. Second, it gives the public defenders more time to devote to those totally indigent folks who really need their services. With more time, a public defender can provide more effective representation, and everyone gets a fair day in court.