Selecting counsel in criminal defense: Public defender, tract attorneys, and hired paid attorney and the truth- what you need to know
Matthews, Felton Louis, Jr.
Felton L. Matthews Jr. [ID]
P.O. Box 1989-8B32-E5P
Ely, NV. 89301
"Selecting Counsel in Criminal Defense: Public Defender, Tract Attorneys, and hired Paid Attorney and the truth - What you need to know."
Pursuant to the United States Constitutional Amendment number (6) six. You are entitled to "effective assistance of counsel." But, what does that mean to people "not" in trouble with the law? This essay is a "outside looking in" perspective on what the above means and what one should look for when invoking their rights under Miranda vs. Arizona supra (U.S. Supreme Court) for legal protection by an attorney.
Primarily, the Law enforcement agencies of the United States which includes the city police, the county sheriff and constabulary, and the F.B.I. (Federal Bureau of Investigation) have the responsibility and the onus to inform you of your right to counsel. This includes other agencies with special or limited arrest powers like the Hwy. Patrol, Bureau of Alcohol, Tobacco, and Firearms (ATF) and the C.I.A. and NSA under certain circumstances. Once you are read your Miranda rights, you are duly advised to remain silent and contact an attorney. The standard and mandatory phone call is what you are entitled to contact someone (e.g. family, friend, or an attorney) to begin your criminal defense.
At this particular stage of your life with your first dealings with the criminal justice system you, or anyone in your position, is feeling a lot of fear and anxiety, and in some cases, great shame at being arrested. The fact of filthy incarceration conditions, bad or poor food, and the presence of harder and bigger criminals than yourself does not help much either. That is why the right to counsel is very important. You need someone to confide in to tell your side of the story. But be forewarned! Jailhouse intake phones are usually tapped by the police and detectives when you are first arrested. If you inadvertently confess to your crime or did something wrong, your defense of your crime may become more arduous or hard. This may make your attorney resign from your case or charge you even more money to defend. My advise to you, as a person who has never been arrested before using that first phone call, is to keep the conversation short, give the address of the jail you are located in, and the amount of your bail needed to get out. Do not discuss any case issues or particulars until you bail completely out of jail and you are in a secure location where you can talk freely with your family, friends, or an attorney. In fact, you should not talk freely with any of your friends if they are involved in your arrest or alleged crime. They may turn state's evidence or witness against "you". This is real, frank talk people.
Counsel or your attorney is usually assigned to you at your arraignment if you cannot afford one. At this hearing, before your preliminary hearing or examination trial before a petit grand jury or grand jury, your charges are read to you and your bail is set. That is usually your opportunity to bail out and get your own attorney to defend you. If you cannot bail out you are usually "stuck" with the public defender. What people do not know is that the court expects you to hire your own attorney if you can bail out on a major felony case (e.g. a sex case, murder, or a weapon's based robbery involving a large sum of money). If you return to court, and you do not have counsel, and you made bail they will revoke your bail! This is the first thing wrong with the American Justice System. You have a presumption of innocence and you are entitled to a "reasonable bail" so why are State Judges revoking people's bail all because they bonded out on a case and cannot afford counsel? Their excuse is "flight risk." How can one be a flight risk and they showed up in court for a pre-trial status check? They do this to put pressure on defendants to resolve the case and to protect alleged victims. The truth is, there is no real presumption of innocence for the poor or working poor who make bail but cannot afford counsel. The same occurred with me in 1990 when I bailed out on my first felony charge of retaliation but could not afford counsel.
Now, for all of those who read my essays previously, you are very curious about the pros and cons of legal defense for the average blue collar to poor American citizen. I will discuss in detail what "really" goes on with attorneys and legal defenses and what you can expect from the three types of criminal defense counsels or attorneys that may actually represent you in a violent crime or sex case. I am using violent crime and sex cases because it is the worse case scenario, the cases are usually riddled with conflict of interest and politics, and finally these cases take the longest to vindicate usually in the appeals system and end up in the U.S. Supreme Court.
The Public Defender
Technically, all attorneys should be created "equal." They have a degree in a college usually a Bachelor of Arts or Science like English or sociology or "pre-law". They have taken the LSAT (Law School Academy Test) and spent at least (1) one year in law school (M.L.L.: Masters in Legal Litigation) or (3) years of Law for a Juris Doctor (Doctorate in Law). They have also passed the state bar exam. Qualifications varies from state to state. There is a federal bar exam for federal attorneys who prosecute or defend.
The public defender is usually linked or connected to the state, county, or federal attorney's offices. Yes, these are the same people who prosecute "you"! They get paid usually directly from funds given to the prosecution from county, state, or federal tax coffers. But this is not always the case. Some get a salary, some get paid by the hour (30.00 to 200.00 dollars an hour), and some get paid per diem based on the disposal of cases! And there lies the problem with "this" option.
Public defenders are "only" effective if you absolutely did not commit the crime in question and it is painfully obvious - even in a sex case. They lose regularly in trial but not "always". Their resources are very, very meager. They need to file special motions to get experts and investigators to assist you in your legal defense. And then, and only then, does the District Attorney, Attorney General, or the U.S. attorney prosecutors approves the funds. In some cases it's the actual Judges who do it. If you need a specialist or a DNA test in your defense, it's like pulling teeth that does not even need to be pulled! (It's even more painful and useless!)
The public defenders are nicknamed "Public pretender" because they "pretend" that they want to help you. Some actually have your best interest at heart even when they are trying to get you to take a plea deal and it's ridiculous! (e.g. it's a bunch of life sentences or life without). What these public defenders really want to do is resolve your case, especially if they are per diem, and move on to the next case. They are on budgets and time constraints and cannot call you or visit and really discuss your defense with you. This representation is the minimum you can get, and in some cases, I am of the opinion that you are better off going to the law library and defending yourself. This is ill-advised, because the U.S. Supreme in 2005 under a case Garcia-Espitia Supra, they ruled if you waive your right to counsel under Faretta vs. California 9th Circuit as I have and you defend yourself, you also waive your right to access and use law books! (Read it and cringe in horror people!) They actually punish you for invoking your right to defend yourself! It is retaliation blatantly. Also, you are also warned if you fire counsel you cannot claim "ineffective assistance" of counsel" on a writ of Habeas corpus.
The remedy above is to fire your public defender citing a conflict of interest or misconduct and request "substitute" counsel or a tract attorney. On the issue of access to law books, if local state and jail house rules allow for law book access and they give it to other inmates who have no counsel and not to you, you have redress under the 14th Amendment. That is a equal protection and due process of law violation. It's discriminatory.
So, I said earlier, "'Technically' all attorney's should be created equal." The truth is they are not academically. Attorney's trained at Stanford, U.S.C., University of Texas, Princeton, Harvard, and Yale Law School are trained harder and are charged more tuition than attorney's trained at smaller and lessor known law schools. My question is, "Do you take a public defender with a "A" from oh let's say, Sam Boyd Law School in Las Vegas, Nevada or do you take a "C" graduate from Harvard or Stanford?" Sometimes, it's a matter of connections. There "is" a "good ol' boy" system among attorney's and Judges. Think "competent" and "caring" for a good attorney.
The Tract Attorney
This type of attorney is "only" available to you if there is a clear conflict of interest between you and your public defender. The Judge over your case has a list of tract attorneys to take over for the public defender. These attorneys have both paid clientele and state/county tax funded clientele. They usually have their own paralegals and secretaries working for them and maybe a third party private investigator they use. However, like the public defender, they are tied to the D.A./A.G. purse strings! This too is conflict and they are poor resources for expert and forensic defense of the criminal cases. Small towns and cities use contract-tract attorneys only.
How to Obtain Tract Counsel
1). There must be a irreconcilable conflict of interest and animosity between you and your public Defender.
2). You cannot be near trial. Tract attorneys need at least (30) thirty days or more to prepare for trial. The Judge has the discretion to deny the motion for sub-counsel.
3). "You" must file the motion in court. A motion is a letter to the court requesting a specific Action. You must also send the D.A. a copy of it. Consult your law library for motion form and rules if incarcerated. You must entitled the motion: "Motion for Substitute/Replacement Counsel due to irreconcilable Conflict of Interest" (Hearing's mandatory)
4). Explain to the Judge the conflict and why you need counsel. It's preserved on record.
The advantage of the above action retains your right to counsel while exposing conflict of interest. The U.S. Supreme Court has deemed conflict of interest unconstitutional under U.S. vs. Glasser (1942) supra.
Because tract attorney's have their own offices, they may be a little more qualified than a public defender and may be a specialist. Though depending on your state, this may not be the case. Most state's do not certify specialist in a field of law, though you should strongly consider their time in practice. Tract attorney's normally have more years experience. Public defenders are usually fresh out of law school and fresh from the state bar examine.
The Hired Attorney
This option is the most risky and the most expensive. Why? You never know what you are getting. You can easily contact the local Bar about a hired attorney or the firm they work for. Expect 300.00 to 5000.00 dollar an hour retainer fees. This option usually has you pay up to (24) twenty-four billable hours up front or at least the first eight. But beware! If you do not pay the hired attorney all their money prior to trial, they will either try to "deal you" out or dump you off on the public defender. Then, you wasted your money. (A lot of it!)
There are strong advantages to hired attorney's and firms. The biggest one is mercenary type objectivity. They do not care if you did it or not (the crime). They care about the law first and then your innocence. Case in point: You can be the biggest drug lord in New York City, NY. You have murdered people defending your profits and territories. This does not matter to the hired attorney when the police did not get a solid search warrant when they raided your home and warehouse and found seven dead bodies and twenty-five metric tons of cocaine or speed (meth-amphetamines). They got paid. The police broke the law and violated your constitutional rights. The hired attorney files the motion to suppress and you are freed. My question to you is, "Does not everyone deserve this kind of representation, even the poor? The hired attorney has more resources, especially if they have many other firms and offices. You need a DNA test or a ballistics expert, they have an expert and a laboratory they have retained regularly. You have a child sex abuse case, they have tons of experts they can call at the ready. You set a time for a visit, they come and they accept your collect calls during business hours. If you got mental issues, they got a doctor too.
Now the disadvantage of the hired attorney is one who has a non-objective conscience. And trust me, there are thousands out there who have taken thousands of dollars and then thrown clients to the "wolves". This occurs with the very guilty murderer or sex offender especially if they have not paid all the required retainer fees. Attorneys have hearts and conscience's too people and biases!
If you have a conflict of interest with a hired attorney, you can file a motion for a substitute counsel in court or you can go into your pocket and hire a new attorney or firm. Another advantage of a hired "gun" or attorney is that they are not beholden to the county or state for pay! The hired attorney or firm qualification varies and you at least have a team working on your case. The hired attorney or firm also stands a better chance at beating the state but that's not always the case. No matter how much money you give an attorney, "zero" to a public defender or three million to a hired attorney, there is one thing money or law will not get rid of in court and that's the truth about what you really and truly did! My question to you is why does money even makes the difference in criminal defense? A poor man deserves as much defense against sex crimes as Bill Cosby or Michael Jackson. So why does the rich see less convictions and jail time than the poor?
Part II: Fighting Attorney Corruption on Habeas Corpus
The U.S. Supreme Court has mandated under Strickland vs. Washington supra that ineffective assistance of counsel occurs when two elements are met. 1). Counsel's assistance falls below reasonable objective standards and 2). And if not for counsel's inept performance you would not have been convicted depriving you the probability of a different result. This is called "prejudice". Your counsel has the defense of strategy to defeat this. If you prevail, on habeas corpus for this, you can sue your counsel for damages and the return of your retainer fees pursuant to Heck vs. Humphrey supra 1994.
You also have (1) year from the denial of your direct appeal to file a Post-conviction writ of Habeas Corpus, either in state court or federal. Ineffective assistance of counsel claims "must" be brought up on habeas corpus or "collateral attack". You must exhaust this type of claim by presenting it on appeal of denial of your habeas corpus or on special collateral attack petition to the highest state court. Then the U.S. District Court can review it under the Anti-Terrorism Effective Death Penalty Act (AEDA see 28 U.S.C.§ 2254). on federal Habeas corpus.
Crooked and corrupt prosecutors are subject to equal protection and due process violations. (U.S.C.A. 5 - U.S. Constitutional Amendment 5). If they collude with your counsel to convict you, suppress evidence of actual innocence, or make improper comments during your sentencing or trial, it results in dismissal due to presumptive prejudice and or resentencing. You can also sue them too for violating your constitutional rights, and in some cases, not barring immunity issues, for damages! Also, in some cases, you can obtain a "mistrial" in your criminal case due to prosecutorial misconduct and corruption. Judges usually bar retrial for this action!
"What to look for: 'Ineffective Assistance of Counsel'"
1). Refusal to return letters or accept phone calls collect to discuss your defense.
2). Not informing you of all favorable plea deals offered in lieu of going to trial - stipulated ones.
3). Trying to force or coerce you into taking a deal you are not sure of (Boykin vs. Alabama supra violation.)
4). Lying about receiving probation or the time on an offense. (e.g. saying you will be out in ten years on a ten to life sentence or if you plea the Judge "will" give you probation instead of consider probation.)
5). Refusal to issue jury instructions relevant to tier of fact in your crime and for lesser included offenses to mitigate guilt and punishment.
What to look for continued.
6). Refusal to investigate your innocence and crime in question or the law behind it.
7). Failure to make at least one visit to jail prior to trial to discuss strategies.
8). Failure to advise you of appellant rights and perfect at least a Notice of Appeal after losing in Trial. ([Toston?] violation). This can also include habeas corpus deadlines!
9). Failure to file for dismissal of charges when facts support it or move for mistrial in court.
10). Failure to make sure PSI (Pre-Sentence Investigation Report) is correct and to move for the least amount of punishment possible during sentencing.
11). Failure to move for dismissal of Juror for cause in Voi dire (Tell the truth) for bias or prejudice or failure to raise Batson Violation (Total exclusion of Blacks, Latinos, or Asian as your "peer" based on your race)
12). Failure to move for O.R. or bail reduction and violation of your speedy trial rights 60 day rule violation (Especially for no strategic cause).
13). Failure to obtain expert (i.e. DNA, Computer/video graphics, Ballistics, and fingerprint. Also a child psychologist when necessary or P.I.)
14). Failure to object in open court during trial. There are other issues. Consult your local or American Bar office nearest you.
An Example of What Judges Deem Effective Assistance of Counsel
"If" you counsel gets you a "deal" or plea-agreement for probation on let's say a sex crime and you were facing 200 years to life like Inmate [number] (Name concealed), then the Judge says or would rule counsel was effective. "But", here's the rub. Let's say you were actually innocent and was cleared by the police and child protective services and you did not go to trial. You have no double jeopardy protection and any charges dropped can be reinstituted at a later date.
On Inmate [number], he has to do 200 years to life because he failed his probation deal and waived his defense. Counsel gets Strickland protection. He also got charged with two other victims he did not even "touch" that were added on as new charges! Again, was counsel effective? No. Why? Counsel should have moved to throw out the case or went to trial in the first place based on the previous investigation of police and CPS. "This" is a real live case people.
Just because the deal is "sweet" does not mean your counsel is doing his or her job people. Counsel also harbored a bias toward child sex offenders and Inmate [number] "is" black people and working class poor! As a rule, check your conscience. You know what you did or did not do. And only deal if you got very little to lose and can do the time. This is the truth about counsel and attorneys and why Nevada sex offense conviction rate is sky high.
Felton L. Matthews Jr.
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