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Is Your Legal Defense a Cadillac or a Taurus?

by Marty Hayes, J.D.

Recently, I served as an expert witness in the criminal homicide trial of an armed citizen who was charged with first-degree murder, third degree murder and voluntary manslaughter. The details are not important to this commentary, but what was clear during trial was that the prosecuting attorney was really at odds with the Armed Citizens’ Legal Defense Network’s mission, and with my independence as an expert at this trial. He questioned me incessantly about the Network, how it works, my involvement in it and he objected to the judge about allowing me to testify at all, because, he charged, I obviously couldn’t be an objective, impartial witness. He “appeared” shocked, though there was a good deal of play acting, about the fact that the Network would pay either a $5,000 or $10,000 retainer to the member’s attorney after a self-defense incident.

The defense attorney got in the last word when he asked if the prosecuting attorney was suggesting that people should not have access to good legal assistance. The judge told the prosecutor to “move along” and the jury saw through the BS and acquitted the armed citizen. But the experience really made me think. Just today, I read an article about what our newest United States Supreme Court Justice, Elena Kagan, said about a criminal defendant’s right to counsel. Let’s start with a little background on the right to counsel.

The year was 1963, and the case was Gideon v. Wainwright.

The result of that landmark case was the USSC’s unanimous decision that a criminal defendant has the right to a lawyer, and to have that lawyer paid for by the government if the criminal defendant could not afford one.

Speaking before a standing-room-only crowd at a Department of Justice event celebrating the anniversary of that decision, Kagan is reported to have said: “The provision of a ‘Cadillac’ lawyer isn’t a right for poor defendants. But they should at least have a ‘Ford Taurus’ defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.” You can read the whole article here.

Kagan is reported to have also said: “We don’t have the resources to make [a Cadillac defense] happen and I’m not sure if we did have the resources that that’s exactly what we should want.”

My interpretation? She said that an indigent criminal defendant doesn’t need a competent defense, just a “showcase” defense. You see, presenting a competent defense in many cases requires a private investigation of the incident, hiring expert witnesses and consultants and more legal help than just one solo attorney can provide.

In many jurisdictions the rate of pay for “assigned counsel” (who are attorneys assigned by the court to handle cases where there are no dedicated public defender offices) is alarmingly low. According to a study conducted for the National Association of Criminal Defense Lawyers, the rate for attorneys is as little as $40 per hour in Wisconsin and in most jurisdictions it is also well below the normal going rate for good legal help, which costs over $100 per hour. In many other jurisdictions a flat rate is paid per case, with that flat rate for murder cases sometimes as low as $3,000, as it is in Florida.