The cost of an appeal lawyer
If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.
The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)
After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.
There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience. Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?
The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?
Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.
The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there has to be better way.
Good post. I was thinking the same thing when I read that case. If a person must sell all she owns in order to afford an appellate counsel, how is she not indigent? It appears that our standards are a bit out of whack.
B.W. Barnett