It’s no secret, criminal charges are intimidating, to say the least.
Matters seem even worse when you have no money to hire a lawyer.
Thankfully, the Supreme Court decision of Gideon v. Wainwright requires that: everyone have access to legal representation, regardless of income.
And thus we have the public defender.
That’s all good, but let’s face it. Public defenders are often paid less than their privately hired counterparts, and they often have a massive workload. And statistically, things aren’t so bright.
But, it’s not all doom and gloom. There are some tips you can use to help you make the best out of your situation.
How do I know?
I asked a lawyer of course.
And here is what they had to say…
Best Practices for Working With A Public Defender, an Attorney’s Advice
I sent out a request, and received an in-depth statement from Falen O. Cox at Cox, Rodman, & Middleton, where she works alongside partners John Rodman and Christopher Middleton.
Cox spared no expense, and gave a VERY thorough explanation on the best practices to working with a public defender.
In truth, many of Cox’s statements apply to anyone dealing with the police or a possible criminal charge. But, they are truly tailored to those folks working with public defenders.
1. When Being Arrested or Detained
A solid defense starts before you are arrested.
‘“Do not give statements to police; do not allow your children to give statements to police; do not consent to searches of anything, but do not resist arrest or obstruct an officer executing a search warrant.” Says Cox
That is a lot right off the bat, and when tensions are running high in the face of armed police officers, these basic points can be easily over looked.
But as Cox says:
“This seems like a no-brainer, but in many cases the defendant’s own statement to police is the strongest evidence against him/her.“
Cox also adds that a person who has been arrested:
“is obligated to give “booking information” e.g. name, address, date of birth, etc. there is no obligation that anyone, under any circumstances, give a statement about whatever it is that the police are investigating.”
Cox goes on to explain that in the modern age, nearly all statements are recorded by body cams or other technologies. Meaning that once something is said, it becomes “memorialized” and nearly impossible to get rid of.
Keeping quiet, Cox continues, this will help the public defender (or any attorney for that matter) tremendously. By invoking the 6th amendment right to counsel when in the presence of law enforcement, limits the evidence which can be collected.
In Cox’s words:
“This (invoking the 6th amendment) is stronger than the Defendant’s own 5th Amendment right to silence.”
Simply stating “I will not speak to you without the advice and counsel of an attorney”; is enough to invoke the 6th amendment right,
But that’s not all.
Once either or both rights are invoked defendants should no longer communicate with police, except for booking information.
Why should you not speak?
Because you may be “waiving your rights” if you speak to officers or law enforcement about the case.
“A defendant who has invoked the 5th or 6th amendment who later initiates conversation with law enforcement has waived that prior invocation (e.g. defendant says he wants a lawyer, the police leave the room then return to tell him he’s being arrested, and then the defendant says something to the effect of “I didn’t even do this, why are you all arresting me, I wasn’t there, let me tell you what happened…).”
As if that weren’t enough, Cox says not to let your children speak with law enforcement either.
“They are outmatched. In Georgia parental approval is not required for police to speak with children, but it is a factor in considering whether or no the child’s statement should be admitted as evidence. Just say no.”
In short, Cox’s advice while being booked is:
Tell all of the things that you wanted to tell the police TO YOUR LAWYER. The lawyer can communicate with the police and the prosecutor, investigate, and can also withhold information that might be harmful to you case.
2. Working with the Public Defender to Build a Defense
Now that you have been booked and processed, your lawyer, even if s/he is a public defender, is there for you. While the situation is still fresh in your mind, it’s time to communicate with your lawyer, and your lawyer alone.
Cox says, as soon as possible, tell your lawyer everything that may preserve your innocence.
For instance, if you were at a store during the time the crime was alleged to have been committed, the public defender may be able to get video footage of you in the store preserved if you tell them immediately.
If you wait too long it may no longer be available (some stores will “write over” footage every 24 hours). The same applies to witnesses, let the lawyer know so that they can take a statement; if the witness dies, or moves and can not but located at the time of trial, at least the lawyer has a recorded statement from him/her that may be admissible.
3. Be Honest With Your Public Defender
Though this statement was third on Cox’s list, Cox emphasizes that this is the most important tip.
This is third on my list, but the most important thing of all: be honest with your public defender. The public defender is an attorney, just like any other attorney, and is obligated to act in your best interest; he or she is not “working for the state” and is prohibited from doing or saying anything that will harm your defense — he or she could lose their license by not acting in your best interest.
The most important thing that I took from Cox’s statement is: “he or she is not ‘working for the state’”. This is something I have always heard about public defenders from my friends who have needed them in the past.
But like any other attorney, public defenders are legally obligated to work in your best interest. That is an important fact, that many may look over in the heat of a legal battle.
“Dishonesty prevents the public defender from investigating your case in a way that is most likely to yield a favorable outcome. For example, if a defendant claims alibi, that might easily be disprovable, when he or she has a pretty good self defense claim, the attorney spends time and resources attempting to solidify an alibi instead of looking into the valid self defense claim and getting witnesses, preserving evidence, etc. that might support the self-defense claim.
It’s true, lying to your attorney can send him in the wrong direction. As you can imagine, this is a huge waste of time and resources.
4. Save Your Public Defender’s Time with this Step
This step is truly something that almost anyone would overlook unless they knew otherwise.
This is the kind of advice that will really save a public defender’s time.
Here it is…
“Nominate 1 person in your family to communicate with the public defender. Everyone knows that public defenders, and all other lawyers, have multiple clients. While most do not mind updating family members about the status of your case, relaying the same information to multiple people is time consuming and can lead to confusion.”
Think about it… if a public defender is representing twenty people at once, and everyone of his clients has three or four folks looking for information, things could quickly get confusing and overwhelming for the attorney to say the least.
“Pick a trusted and responsible family member or friend to be your family’s point of contact; that person calls the public defender, the public defender calls that person, and that person disseminates information to all other family members and friends.”
Cox continues reminding us that:
“The public defender is not able to discuss the details or facts of your case with family and friends, even if s/he has a power of attorney. The attorney client relationship exists only between the attorney and the client.”
5. Do not Talk About Your Case With Anyone But Your Attorney
As much as you might want to get things off of your chest, and vent to your friends or family, Cox says do not speak to anyone about the case, but your attorney.
“Do not discuss your case with anyone except for your lawyers. Doing so adds complication and could lead to someone else being a witness against you, or your words being used against you.
This rule especially applies if you are incarcerated because the phone calls, and visitations (and e-mails for facilities that have this ability) are monitored and recorded.”
“What you say on the phone, or what other people say to you can be used in trial against you. Also keep in mind that mail is monitored and subject to search as well.”
6. The Client is The Expert on the Facts, The Lawyer is the Expert on the Law
One important distinction which Cox made very simply is that,
The client is the expert on the facts and the lawyer is the expert on the law.
But Cox actually went on to explain a bit more about what originally made me curious about this topic.
How can you help your public defender find laws you may be aware of, but they may not? Cox let me know, without me even having to ask!
While most good public defenders will welcome collaboration with the client about his or her case, a better use of the client’s time is making sure that the lawyer knows all relevant facts, letting the lawyer know who might speak for him or her, and helping the lawyer to tell his or her story.
It’s also acceptable for the client to want to talk to the lawyer about certain laws or cases that he or she thinks might be relevant to his or her case. But, please listen to the lawyers advice once he or she has considered your points.
It’s important to allow the lawyer to spend time researching and developing defenses and arguments, and it can be difficult to do that when the client is eager to discuss dozens of cases that the lawyer has determined are not relevant. Let the lawyer be the lawyer.
To me, this all comes down to something many defendants forget to maintain in the courtroom.
Respect that your public defender is doing his/her best, and that s/he is working for your best interest.
Failure to do so will only create problems down the road.
7. Do Not Communicate with the Prosecutor, or the Clerk of the Judge
When I am heated, I know I love to rant. Being pent up in jail or worried at home about a pending criminal charge could easily cause me to have an outburst.
But as tempting as it may be, for no reason should you contact, in writing, or otherwise; the prosecutor or clerk of the court.
“Do not write to the prosecutor, the clerk of the Judge. Again, anything the accused says can be used against him. Admissions of guilt, apologies, and explanations sent to the prosecutor can be used against a defendant, and almost never have the desired outcome.”
It’s also important to bear in mind that a defendant’s communications to a judge are prohibited, unless they have been served to the opposing party.
On the other hand,
“ Anything sent to the clerk will be filed into the case, made public record, provided to the prosecutor, and can be used against a defendant. As a result, these communications are much more likely to harm a defendant’s case than to help it.
Whatever a defendant wants to say should be said to his or he lawyer.”
8. Patience is a Virtue
That statement has never been more true than it is when it comes to matters of law. The court system is slow, and it can be grinding. But, as in matters of life, the longer you can maintain your patience the better.
“Be patient. In criminal cases there tends to be many periods of time, long periods of time, where nothing is happening in the case. There is nothing that a public defender, or anyone else, can do to make things happen or make them happen quicker. For instance, in Georgia a defendant can be held without bond and without being indicted for up to 90 days.”
“There is nothing that a defense lawyer can do to force the state to move more quickly.”
The last person you want to take your frustration out on, is the public defender. If you do your best to be informed on your position, and respect your public defenders position, it will make your life a lot easier.
No matter how bad things are, the best outcome will be what it is.
9. Take Your Attorney’s Advice
No matter how good your attorney is, s/he can’t help you if you don’t help yourself.
In the words of Attorney Cox:
Do the things the attorney asks you to do. It’s no secret that public defenders have many cases. While the lawyer is the expert on the law, he or she may ask the client to do things to help sway the facts in the client’s favor — do them.
For instance, if you’ve been in an accident and the lawyer asks you to complete a defensive driving class within 30 days, make your best effort to do it.
If you’ve been charged with possession of illegal drugs and the attorney asks you to seek a drug and alcohol evaluation, do it. Also, make the effort to try and find these things on your own and then confirm with the attorney that it will be accepted instead of asking the attorney to identify a class for you.
10. When You are out on Bond
The final point Cox raises, involves being out on bail.
Lastly, if you are out on bond, do or continue to do things that exemplify your status as a productive member of society — keep going to school and/or work, stay away from people or situations that might lead to contact with law enforcement (there is a such thing as being in the wrong place at the wrong time), keep your appointments with your lawyer, and show up to court on time and dressed well.
Lastly, mind your manners: please and thank you, yes sir/ma’am and no sir and ma’am, and Your Honor. And again because I can not emphasize this enough: everything goes through your lawyer — do not attempt to talk to the Judge or prosecutor yourself once you get to court (unless you’re on the witness stand and you and lawyer have talked about, and agreed that you’ll address the court).
I have seen and heard defendant’s inadvertently confess to crimes (e.g. “No I didn’t have permission to take the car, but he owed me $100.”) when they have tried to do that — there is nothing your lawyer can do to take it back.
11. The Final Thing to Remember
One more, if you are out on bond and you move, remember to give the lawyer, your bonding company, and the court your new address-yes, all
As you can see, there is quite a bit you can do to work with your public defender to help keep you out of trouble.
The biggest lesson I have learned when dealing with court situations is- respecting the positions of each person involved, and not loosing my temper.
But I find the advice brought forth by attorney Falen Cox of Savannah, Georgia to be very helpful and informative!
Here is another great interview of her in the Savannah Now Paper.
This article was inspired as part of the development on a Healing Law Article:
The Ultimate Guide to Working With a Public Defender
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