Breastfeeding and performing nude in a play, theatre or entertainment venue are excluded under the law. Nudity in strip clubs in New York is not allowed where alcohol is served. Many strip clubs have “juice bars”, which permits their nude employees to be anywhere in the club. Each municipality is allowed to pass their own nudity laws regarding entertainment and the restriction of strip clubs. It is also illegal to display offensive sexual material in a public place under Penal Code Sections 245.10 and 245.11.

Penalties

For a Class A misdemeanor sex crime, you may be subject to a fine not to exceed $1,000 and/or jail time. If you are a repeat or habitual offender, your sentence will be increased. Punishments for repeat offenders and felony sexual assault convictions include jail time; fines, mandatory rehab, and you may be required to register as a sex offender on the National Sex Offenders Registry.

Case:

Three people were arrested on Monday August 1, 2011, after taking off their clothes in front of the New York Stock Exchange during an art performance project involving dozens of people. The three were taken to the 1st Precinct stationhouse in Tribeca and released with a summons. The performance was organized by artist Zefrey Throwell, who gathered 50 people as part of an art event entitled “Ocularpation”, where participants pretended to be traders, janitors and secretaries. Zefrey’s inspiration for the performance was his 65 year old mother who lost most of her retirement savings during the Wall Street crash and has now been forced to return to work. Zefrey defended his project as an educational project about transparency that he believes Wall Street needs.

Although an arrest for indecent exposure or public indecency is considered a lesser sex crime in New York, it still should be taken seriously. It is important to hire an experienced New York criminal defense attorney to represent you. The attorney can argue that you were falsely accused or possibly that your first amendment rights to freedom of speech were violated to get the case dismissed. If you have been convicted of previous sex crimes, the attorney may be able to arrange a plea bargain, get you reduced fines and possible avoidance of having to register as a sex offender.

The man was convicted in 1984 for a murder that occurred during a gas station shooting in St. Louis.

However, it was discovered that one of the key witnesses in the case lied about the convicted man’s involvement in the shooting.

Prisoner’s Innocence Proven

Darryl Burton, 46, was sentenced to life in prison with no chance for parole for 50 years and was released from the Jefferson City Correctional Center last Friday when he was proven innocent.

Burton was released when his case was sent back to trial and it was revealed that witness Claudex Simmons lied about seeing Burton shoot the victim who died.

Effort to Help Other Innocent Victims

Burton is now hoping that his case will better inform the general public about the wrong imprisonment of thousands of innocent victims throughout the country.

“I come to prison thinking that this is an isolated incident, I’m the only person this has ever happened to,” Burton said. “But it does happens in more cases than we know.”

(Source: The Associated Press)

Do you know someone who has been wrongly convicted of a crime? If so, please contact us today to speak with an experienced attorney who will evaluate the case and ensure your loved ones receive the legal compensation they need and deserve.

Those rights are precious to every American and in many cases left to criminal defense attorneys to preserve. In June of 2008, the United States Supreme Court made a ruling that interpreted this very simple but controversial sentence.

In The Bill of Rights, the 2nd amendment reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.

Firearm owners in this country are tired of being considered criminals, gun nuts or simply paranoid and a threat to society. After over 100 years of silence, the Supreme Court finally made a ruling on the meaning of this extremely important right.

The Supreme Court felt that Americans do not need to be members of a “well regulated militia” to ‘keep” and “bear arms”. The rights of the people to possess firearms (arms) “SHALL NOT BE INFRINGED”

They further went on to say that Americans possessing arms was and still is necessary to remain a free nation. When governments remove all of the weapons from its citizens it is free to abuse them in any way it sees fit without resistance. This was the same reason we declared our independence from British rule in the first place.

Firearm owners are being harassed and imprisoned in several area’s of our nation for simply possessing legally obtained firearms. Defense attorneys are sometimes all that stands between an individual and the government who is attempting to ignore our most basic rights.

Imhoff and Associates has defended and protected the rights of thousands of clients. The individual states and local governments are still allowed to make rules and regulations about the type of firearms, requirements to purchase and own one and other types of regulations but they are prohibited from preventing law abiding citizens from possessing firearms in their homes and businesses. These complex issues can often lead an otherwise law abiding person to be jailed or fined for what may amount to an unconstitutional action by the police or government.

Don’t let your rights be taken from you. We will fight for you so justice will prevail in your case as well as protect all of the rights of the citizens of our nation.

The plaintiffs were supposedly arrested by the NYPD in 2003 during an anti-war protest.

Protestors Arrested and Jailed

During the protest, members of the NYPD claimed the protestors were blocking the sidewalk and were never asked to disperse.
Instead, police officers simply penned them in and arrested them without any sort of warning.

Lawsuit Claims

The protest was led by Sarah Kunstler and consisted of 52 protestors.

“The NYPD violated core constitutional rights when it arrested a group of peaceful demonstrators who were lawfully protesting against the commencement of the Iraq war and those who stood to profit from it,” claims Sarah Netburn, who served as an attorney in the case.

The protestors were reportedly handcuffed and taken to the police department without any real knowledge of what they had done wrong.

Justice Served with Settlement

Charges against the protestors, who were outside of the Carlyle Group at the time of the arrest, were dropped as part of the settlement.

“We hope our victory helps convince the city to stop violating people’s rights as a matter of policy and stop wasting taxpayers’ money doing so,” says Kunstler.

(Source: NY Daily News)

Have you been the victim of a wrongful arrest? If so, please contact us to speak with an experienced attorney about the legal options available to you.

Police Must Follow Search and Seizure Procedures

Contrary to what’s seen on television, police may not simply approach people and search their person unless one of the following situations apply:

1) Arrests: An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. An arrest must be based on probable cause. Probable cause to arrest is present when at the time of the arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.

When police affect an arrest, they may perform what’s known as a “search incident to a lawful arrest” which is defined as:

• Whenever there is a lawful arrest of a suspect, the police may, contemporaneous with that arrest, search within the geographic “reach area” of the suspect, specifically including his pockets or any bags or parcels she is carrying.
• If the suspect is arrested in a dwelling, the police may generally not search outside the room the suspect is located in.
• Note that if the arrest turns out to be unlawful, the search is unlawful as well.

Please also note the special rule for automobiles:  When a suspect is lawfully arrested within a vehicle, the police may search that person and within the passenger compartment of that vehicle (excluding the trunk).  This includes any parcels or bags within the passenger compartment of the car.

2) Stop and Frisk: The police may also conduct a less intrusive search, known as a “stop and frisk.”  While a full arrest as described above must be supported by “probable cause”, a stop and frisk only requires “reasonable suspicion”:

• “Stop“:The Court has not specifically defined “reasonable suspicion.”  It requires something more than a vague suspicion (e.g. it is not enough that the detainee was in a crime filled area), but full probable cause is not required.  Whether the standard is met is judged under the totality of the circumstances.Example: Reasonable suspicion justifying a stop is present when (i) a suspect who is standing on a corner in a high crime area (ii) flees after noticing the presence of police.  Neither factor standing alone is enough to justify a stop, but together they are sufficiently suspicious.
• “Frisk“:  If the police reasonably suspect that the person is armed after stopping them, the police may conduct a limited pat-down of the suspect’s outer clothing to search for weapons. If a weapon or other contraband is discovered during the course of that pat-down, it may be admissible depending on how much it felt like the contraband the officer thought it was.
  • The inquiry in this situation is “how much of a weapon/contraband did the object feel like through the suspects clothing.”Example: Police notice Sean in a drug neighborhood pacing on a corner.  During the frisk, the officer feels a small metal rectangular box, which he opens, and determines that it contains crack cocaine.  There is a strong argument, based on US Constitutional law that the officer could not possibly determine that the item was crack by feeling a rectangular box through the suspect’s clothing.

The above are guidelines to inform people of the rights guaranteed them by the Constitution.  There are many other protections against unreasonable law enforcement actions guaranteed by the Constitution and state and federal laws, and you should educate yourself fully.  If you were stopped by a police officer and their conduct was not within the terms discussed in this article, please contact an attorney immediately; your liberty may depend upon it.

Habeas Corpus Petitions Extend to Citizens and Non-Citizens Alike

This decision by the Supreme Court is a little unique in that the rights are extended to non-citizens as well as citizens. Also, the rights exist on property leased by the United States. There will not be two classes of courts for two classes of citizenship. No longer will it matter if you are an American Citizen or a resident Alien, each will be allowed to have their voice heard in a Federal Courtroom closest to them. The Guantanamo Bay Navel facility is leased to the US Navy from the Cuban government.

The court did not go, as far as to say that the Military Tribunals that were determining the guilt or innocence of the enemy combatants at Guantanamo Bay were constitutional or unconstitutional. Currently the Detainee Treatment Act of 2005 (DTA) provides for the procedures used to determine the “detainees” status. In addition to suspending Habeas Corpus Petitions for detainees, the DTA allows for a three-member tribunals to determine if a prisoner is properly labeled an enemy combatant. The military tribunals can rely on classified information to make this determination, even though the same evidence is not given to the prisoner to examine. The tribunals are required to assume that the evidence is genuine and reliable. The prisoners are granted a “personal representatives” but they are not lawyers.

Habeas Corpus Important Part of U.S. Law

Justice Kennedy writing for the majority of the court stated, “Security depends upon a sophisticated intelligence apparatus and the ability of our armed forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The framers [of the US Constitution] decided that habeas corpus, a right of the first importance, must be a part of that framework, a part of that law.”

It has often been said that the fairness of a society can be determined by the treatment of its least favored citizens, and by definition, those accused of crimes fall into this category. Subject to the loss of liberty and sometimes even of life, those accused of crimes face potentially life-changing situations. Thus, before consigning them to such a fate, a just society would want to be exceptionally sure that the accused were in fact guilty of the crimes with which they were charged – in other words, that they were guilty beyond a reasonable doubt.

It is from this vantage point, that defendants’ rights begin to make sense. In order for a society to function with fairness and justice, a certain level of protection for the accused must be guaranteed. In the United States criminal justice system, these protections include the right to a speedy and public trial before a jury of one’s peers.

Rights of the Accused

These three specific rights of the accused, which are clearly spelled out in the Sixth Amendment, provide a substantial amount of protection for any citizen accused of a crime. Moreover, as important as they are for the accused, they also provide a variety of safeguards for society at large.

A system of justice in which the innocent were jailed, the guilty ran free and in which prosecutors were able to go after political opponents, would be anything but just. Therefore, just as any free society could not exist without the right of free speech and expression, no democracy could exist without a fair justice system in which those accused of crimes were treated fairly and ensured their rights. It is in this context that some of the rights of the accused will be more clearly spelled out.

Right to a Jury Comprised of Impartial Peers

By the time of the American Revolution, trial by jury was an accepted and established right in the colonies. Seen as a basic form of protection, the colonists stood steadfast in their insistence to maintain trials by jury. At the time, the conventional juries were comprised of twelve jurors, chosen at random from the widest population.

One of the reasons the right to a trial by jury is offered to all criminal defendants is that it is a means of prohibiting oppression by the government. At its inception, the idea was that those being accused of serious crimes should be protected from unfounded charges and corrupt judges. Thus, providing the defendant with the opportunity to stand trial in front of a jury offers a unique safeguard against overzealous prosecutors and biased or eccentric judges.

A jury is usually composed of twelve members, although this isn’t always a strict requirement. In fact, the Supreme Court has recognized that all that is needed is that the jury be large enough to promote deliberation, that it be free from outside influences, and that it present the opportunity for a large cross-section of the population to be represented. The actual selection process permits lawyers from both sides to screen out potential jurors that have a bias (called a “challenge for cause”). Each lawyer is also allowed to eliminate a handful of jurors simply because they feel the person may not be sympathetic to their cause (called a “peremptory challenge”). However, a juror’s race, sex, religion or national origin is not a proper basis for exclusion. The exclusion of any specific segment of the population from jury service poses the risk of eliminating certain qualities of human nature and varieties of human experience from the process. Such exclusion deprives the trial of a perspective on human events that may have a significant, but unknown, importance.

The jury system is designed specifically to protect the rights of the accused. The idea is that a panel of one’s community members – one’s peers – is best qualified to make important decisions of innocence or guilt. In addition, the jury system enhances democracy by allowing ordinary citizens the opportunity to participate in the legal system, and to assess whether the system is functioning properly. Thus, a free and fair trial by a jury composed of one’s peers remains a vital right of both the accused and society at large.

Right to a Speedy Trial

The right to a speedy trial is among the most important rights of the accused. Its Intent is to prevent unnecessary and oppressive pretrial incarceration, and to preserve the ability to prepare and present a defense for the accused. The right commences when criminal prosecution begins and extends only to those people that have been accused of a crime. The idea is that the criminally accused cannot be confined in a jail cell indefinitely, and must be brought before a magistrate in a timely manner.

In order to assess whether the accused has been deprived of his right to a speedy trial, four factors are usually considered: the length of the delay, the reason behind it, the defendant’s assertion of his right, and the prejudice to the defendant. If a judge finds that a defendant has been deprived of his right to a speedy trial, the result can be dismissal of the charges or even the reversal of a conviction.

The public at large also has an interest in maintaining the right to a speedy trial. Not only do people in jail have to be supported at the public’s expense – through taxes – but a delay often diminishes any rehabilitative effects that the criminal justice system is intended to have.

Right to a Public Trial

The right to a public trial is imperative because it provides that the defendant’s family and friends, the community and the press can all observe whether the government is upholding the rights associated with the legal system. When trials remain secretive and no knowledge about them is distributed to the public at large, the opportunities for corruption increase greatly. Public trials, on the other hand, demand accountability by their very nature. Conclusion: A fair criminal justice system is one of the hallmarks of a well-functioning democracy. The rights associated with such a system, namely that of a speedy and public trial presided over by one’s peers, protect not only those accused of crimes, but also society at large. The rights of the accused therefore also become the rights of the public, and guarantee that everyone may examine how the system is functioning and whether it is fair.

Donna Ortlieb is an Imhoff & Associates, P.C. Criminal Defense Attorney in Southern California. Donna Ortlieb has practiced Criminal law for the past 7 years. Donna Ortlieb has successfully defended clients in criminal misdemeanor and felony matters. Donna Ortlieb has experience in jury and bench trials, arraignments, bail and O.R. release hearings, entry of negotiated pleas, sentencing hearings, restitution hearings, civil compromise hearing, and administrative law hearings. Donna Ortlieb is a member of the criminal appeals panel of Appellate Defenders, Inc., San Diego, the American Bar Association, Orange County Bar Association, National Association of Criminal Defense Layers, and California Attorneys for Criminal Justice. Donna Ortlieb attended Southwestern University Law, graduating in 1994 and obtained her undergrad from University of California, Irvine in 1991. (Updated Feburary 2006)

Open up, this is the police! This command is usually delivered with a loud pounding on your door, and usually means that police will soon be entering your home and searching your belongings. In the eyes of the law your home is your castle, but under some circumstances your rights in your residence give way to the power of law enforcement. But this power is not unlimited. The Fourth Amendment to the U.S. Constitution prohibits the police from conducting unreasonable searches and seizures. Determining what is reasonable can be complicated businessso complicated, in fact, that treatises have been devoted to the search and seizure issue. Although the law is complex and constantly evolving, there are several basic rules that govern when, where, and how police officers may search an individuals home. The more familiar one is with these rules; the better-equipped one will be at identifying an illegal search.

Search and Arrest Warrants

Absent exigent circumstances, the general rule is that police officers may only enter a persons home with a search or arrest warrant based on probable cause. A search warrant gives the police the right to search a particular place, at a particular time, and only for particular items as approved by a judge. The warrant must clearly spell out what these items are, and generally, the police may not look for items that are not listed in the warrant. For example, if the search warrant authorizes the police to search for a rifle, police may only search places in your home that are big enough to hide a rifle. Therefore, in this example, a small bureau drawer or a jewelry box on that bureau would be out of bounds.

If the police enter a home pursuant to an arrest warrant, they may only search the areas into which the suspect might reach to obtain weapons or destroy evidence. This area is generally measured by the suspects wingspan.

There are circumstances, however, when police may extend a search beyond the terms of the warrant. The most significant of these circumstances is known as the plain view doctrine. Under the plain view doctrine, police who are lawfully searching a home may seize any items in plain view whose incriminating nature is immediately apparent. Even if the item is not listed in the warrant, if it is in plain view and obviously incriminating, police may rightfully seize it.

Knock and Announce Rule for Police

Generally before entering your home to serve a valid search warrant, police must knock on your door, and announce their presence, rather than simply forcing their way in. The so-called, knock and announce rule requires that police wait a reasonable amount of time for the resident to open the door. If you then refuse to let the officers in, they have the right to force the door open.

As is often the case with rules governing police searches and seizures, however, there are exceptions to the knock and announce rule. Police may forcibly enter your home without knocking and announcing when a more stealthy approach is required to ensure the safety of police officers or to prevent the destruction of evidence. Even when officers do knock and announce, they need only wait a few seconds before bursting in.

Warrantless Searches

Just as there are exceptions to the knock and announce rule, there are also exceptions to the warrant requirement. First, police do not need a warrant to enter and search your home if they obtain the consent of an occupant. Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. Currently, the U.S. Supreme Court is considering what should happen when one spouse consents to a search of the house, while the other spouse does not.

Even without a search warrant and without the consent of an occupant there are still occasions when police may enter and search a home. Although there is no general emergency exception, the court will decide on a case-by-case basis whether an actual emergency existed that allowed police to conduct a warrantless search. Shots fired, screams heard, or fires emanating from inside a building have all been considered emergencies that justify searches without warrants. A federal appellate court recently ruled that the “strong aroma” of a decaying body, wafting through the open window of a dead man’s house, constituted an emergency exception to the Fourth Amendment’s warrant requirement. Essentially, anytime the police have a reasonable belief that and immediate search is required to protect the safety of individuals, police will be permitted to search without a warrant.

Protecting Your Rights

Although search and seizure law can be confusing and is constantly evolving, there are some basic steps you can take to protect your Fourth Amendment rights. First, remember that generally, without a warrant, police have no right to enter and search your home. If a police officer asks your permission to search your home you are under no obligation to consent. Consenting to a search automatically makes that search reasonable, and is essentially a waiver of your Fourth Amendment rights. Consequently, whatever an officer finds during such a search can be used to convict the person. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In fact, police officers are trained to use their authority to get people to consent to a search.

If the police have a search warrant, they may enter your home without your consent. In this case, there are still things you can do to protect yourself. Next, ask to see the warrant. If for any reason you believe that the warrant is not valid, make your objections clear to the officer, and announce that you are not consenting to the search. But remember that it’s always in your best interest to remain calm, polite, and non-confrontational. Even if you believe the search to be unreasonable, you have nothing to gain by interfering with the police officers. A person should not risk injury or a separate charge of “interfering with a police officer.” After voicing your objections to the search, simply stand aside and allow a court to decide later whether the officer’s actions were proper.

Most importantly, you should immediately contact a criminal attorney whenever you have been the subject of a search or seizure. In the event that the police have conducted an unreasonable search of your home, an attorney will seek to suppress the evidence discovered as a result of that search. This means that the illegally obtained evidence may not be used against you at trial. An experienced attorney will know how to protect you when your Fourth Amendment rights have been violated.

There are two fundamental principles which guide the United States federal criminal justice system and which protect the rights of an accused in a criminal prosecution. First and foremost is the principle that an accused is presumed innocent. The second basic constitutional principle of law places the burden of that proof squarely upon the prosecution. These two principles are vital components of the criminal justice system which apply to a criminal defendant up until a verdict is reached.

Rights Guaranteed to Persons Charged with Crimes

Yet there are many more rights guaranteed to persons accused of criminal conduct or charged with the commission of crimes. These rights are contained within the Bill of Rights of the Constitution of the United States and are also contained within the Constitutions of each of the States of these great United States. In addition, the Fourteenth Amendment of the Constitution of the United States extends these protections to all citizens of each state within the United States. For example, the Fourth Amendment guarantees the right of people to be secure in themselves and their homes and thus requires a search warrant to issue only with probable cause. Additionally, the Fifth Amendment guarantees that no person shall be held to answer for an infamous crime (interpreted as felony) without a Grand Jury indictment, that no person shall be tried twice for the same crime (double jeopardy) and that no person shall be compelled to be a witness against himself (self-incrimination), for example. It is the Sixth Amendment of the Constitution of the United States which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committedand to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

As the Sixth Amendment states and the Supreme Court has ruled with several exceptions that, an accused is guaranteed the right to a trial by jury. Further, an accused has the right to be informed of the nature and cause of the accusation. This generally occurs at the arraignment, where an accused is presented with the complaint that contains the charges, which have been filed against him. It is the “confrontation clause” of the Sixth Amendment that guarantees an accused the right to “be confronted with the witnesses against him. [Exactly what does this mean?] Black’s Law Dictionary has traditionally defined confrontation as the “act of sitting a witness face to face with defendant [accused], in order that the defendant may make any objections he has to the witness’, or that the witness may identify the accused,” Black’s Law Dictionary, 4th Edition.

Right of Accused to Question Witnesses

The essence of the right to confront witnesses, as guaranteed by the Sixth Amendment of the Constitution of the United States, is the right of an accused to confront his accusers, that is, to cross-examine (question) the witnesses who present evidence against him. The questioning is designed to uncover bias, inability to perceive or observe, and, generally, to dilute the strength of the evidence that the witness offers. The Sixth Amendment was written to prevent secret trials and to prohibit the use of using as evidence written statements from absent witnesses (hearsay), except in rare situations codified in the Federal Rules of Evidence and various State Evidence Codes. In recent years, legislators, concerned that those accused sometimes escaped punishment because the minors were afraid to testify in open court, have written special confrontation rules for minor complainants in child sexual assault cases. Consequently, new evidentiary rules were adopted to allow children to testify via closed-circuit television. Here, the accused can see the child, but the child does not see the accused. Instead, the child faces defense counsel, who conducts the cross-examination. Although every accused is guaranteed the right to cross-examine any witness that comes before them, an accused is not required to provide any new evidence or any witnesses to prove their innocence. Remember, it is the prosecution who bears the burden of proof beyond a reasonable doubt. Therefore, an accused may sit silent and say or do nothing. Generally, though, an accused hires an attorney to assist in his defense. The accused will work with counsel in deciding how his defense will proceed. The defense may consist of simply challenging the reputation, credibility or legality of the prosecution’s evidence or witnesses. Or, the defense may merely challenge the prosecution’s case by arguing that the proof does not rise to the constitutional level of proof required, that is, proof beyond a reasonable doubt.

The defense of a person charged with the commission of a crime is complicated and dictated by many varied rules and principles. Therefore, if you or a loved one is under investigation or is accused, it is imperative that you seek the counsel of an experienced criminal law attorney, who can help unravel the maze of the criminal justice system and protect the accuseds rights.

The Sixth Amendment to the United States Constitution provides that, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, and to have the Assistance of Counsel for his defense. The right to have assistance of counsel requires individual states to appoint attorneys for indigent defendants in criminal cases. Gideon v. Wainwright, 83 S. Ct. 792 (1963). However, there are two important limitations on this right to an appointed attorney. First, the right to an attorney does not attach until the formal initiation of criminal proceedings by complaint, indictment or information. Kirby v. Illinois, 406 U.S. 682, 689 (1972). Second, all states and the federal government have some type of cost recoupment system that allows states and the federal government to recover from indigent defendants some of the costs of providing counsel to them.

No Right to an Appointed Attorney for a Person under Investigation but not Charged

In a long line of cases dating back to 1932, the Supreme Court has held that the Sixth Amendment right to the assistance of counsel does not attach until a person is formally charged with a crime. Powell v. Alabama, 287 U.S. 45 (1932); Kirby v. Illinois, 406 U.S. 682, 689 (1972). This holding means that when a person is under investigation by law enforcement she does not have a right to court appointed counsel to assist her in responding to and protecting herself from the authorities. Only where the government had crossed the constitutionally significant divide from fact-finder to adversary can an uncharged person have the right to an appointed attorney. Hall v. Lane, 804 F.2d 79, 82 (7th Cir. 1986). Essentially, an uncharged person is entitled to appointed counsel only when the government intentionally delays filing charges in order to avoid the protections of the Sixth Amendment. Bruce v. Duckworth, 659 F.2d 776, 783 (7th Cir. 1981).

Government Recovery of Costs of Appointed Counsel

The Supreme Court has unambiguously held that the Sixth Amendment requires appointment of counsel for indigent defendants. Gideon v. Wainwright, 83 S. Ct. 792 (1963). In recent years, the federal government and all the states have established systems to seek reimbursement from indigent defendants for some of the costs of appointed counsel. The constitutionality of recoupment statutes has been challenged on grounds that such statutes deny the indigent defendant her Sixth Amendment right to assistance of counsel and her Fourteenth Amendment right to Equal Protection of the laws and Due Process. While some of the specific state systems have been deemed unconstitutional in application, the concept that governments can seek to recoup some of the costs of appointing counsel for indigent defendants has been consistently upheld.

Sixth Amendment Challenges

In some cases where courts have considered the validity of state recoupment statutes under the Sixth Amendments right to assistance of counsel, courts have held that such statues did not deny indigent defendants right to assistance of counsel. On the other hand, some courts have held that such statutes were unconstitutional because they discouraged indigent defendants from exercising their right to have assistance of counsel. In State of Alaska v. Albert, 899 P.2d 103 (Alas. 1995), the Supreme Court of Alaska held that Alaskas recoupment statute did not violate indigent defendants right to counsel because there was no evidence that the recoupment system caused indigent defendants to refuse counsel more frequently than non-indigent defendants. Likewise, In Fuller v. Oregon, 94 S. Ct. 2116 (1974), the United States Supreme Court held that because Oregons recoupment statute only imposed obligation to repay costs of counsel on those with foreseeable ability to meet that obligation, it did not deter indigent defendants from exercising their right to counsel. In certain jurisdictions, recoupment statutes do not require a court to determine an indigent defendants ability to pay prior to the recoupment judgment. Furthermore, some jurisdictions do not require determination of the indigent defendants ability to pay prior to recoupment judgment even if jail is a possible consequence for nonpayment.

While some state recoupment statutes have been deemed constitutional because the statute did not violate the Sixth Amendment by discouraging indigent defendants to exercise their right to counsel, other state recoupment statues have been held unconstitutional because the statute chilled an indigent defendants exercise of the right to counsel. In Fitch v. Belshaw, 581 F. Supp. 273 (1984), Oregons recoupment statute authorized courts to assess the cost of court-appointed counsel if the court determined that the indigent defendant was able to repay attorneys costs. However, all defendants who requested appointment of counsel were required to sign an affidavit promising to repay the costs of appointed counsel, discouraging defendants to exercise their Sixth Amendment right. The court held that Oregons recoupment statute unconstitutionally chilled indigent defendants exercise of the Sixth Amendment right to counsel because it required all indigent defendants to promise to repay their attorney costs whether or not they had the means to repay.

Due Process and Equal Protection Challenges

Section 1 of the Fourteenth Amendment to the United States Constitution provides that, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In cases where courts have considered the validity of state recoupment statutes under the Due Process Clause of the Fourteenth Amendment, courts have held that such statues did not deprive indigent defendants of liberty or property interests within the meaning of the Due Process Clause. In Wicks v. Charlottesville, 208 S.E.2d 752 (Va. 1974), Virginias recoupment statute permitted automatic taxation of a convicted defendant for repayment of attorneys fees. The Supreme Court of Virginia held that while the United States Constitution assures every accused a right to court-appointed counsel, no court has held that every constitutional right or privilege must be available to all persons without any cost or obligation on their part. Hence, the Court found Virginias recoupment statute valid under the Due Process Clause. On the other hand, in Fitch, supra, indigent defendants claimed that Oregons recoupment statute deprived them of substantial liberty and property interests without notice or hearing in violation of the Due Process Clause. Under the Oregon recoupment statute, indigent defendants who failed to repay the cost of counsel were subject to civil judgments, suspension of a drivers license, arrest and imprisonment. The court held that such property and liberty interests were substantial, especially when the statute did not require a notice or hearing, and thus the Oregon recoupment statute deprived indigent defendants of liberty and property without due process.

In Alaska, supra, indigent defendants argued that state recoupment statutes violated the Equal Protection Clause of the Fourteenth Amendment. Under Alaskas recoupment statute, indigent defendants had far less opportunity to challenge the attorneys fees assessed by the state recoupment statute than did more affluent defendants who wanted to challenge the fees charged by their private attorneys. However, the court held that the recoupment statute served a legitimate state purpose, to obtain payment for the cost of appointed counsel. Hence, the court held that Alaskas state recoupment statute did not violate the Equal Protection Clause of the Fourteenth Amendment because the procedure granted to indigent defendants, even if different from procedure granted to more affluent defendants, achieved a legitimate state purpose with administrative efficacy while protecting the rights of criminal defendants. On the other hand, the Supreme Court in James v. Strange, 92 S. Ct. 2027 (1972), held that Kansas recoupment statue was unconstitutional because it did not allow indigent defendants all of the exemptions provided to other judgment debtors. The Court stated that Kansass recoupment statute treated indigent defendants discriminatorily from other judgment debtors and thus the statute violated the Equal Protection Clause of the Fourteenth Amendment.

Conclusion

The United States Constitution grants every criminal defendant a right to counsel. Accordingly, federal and state courts must provide indigent criminal defendants with court-appointed lawyers if they are unable to hire private counsel. However, all state and federal governments now have recoupment systems where able indigent criminal defendants are required to repay attorneys costs at the end of trial. If you are confronted with the option of requesting court-appointed counsel, it is important to consider the recoupment statues of that jurisdiction or consult an attorney to discuss the matter further. Additionally, if you are under criminal investigation but not charged with a crime, you should consult an attorney to determine whether you qualify for an appointed attorney and what can be done to avoid criminal charges.