When Am I Entitled to a “Free” Criminal Defense Attorney?

In both federal and state criminal cases and even some civil case, the law (thanks to the U.S. Supreme Court decision 55 years ago in Gideon v. Wainwright) affords defendants the right to representation by a criminal defense attorney – even for misdemeanors. It is only when the individual is unable to afford a defense lawyer that one is appointed for the defendant (i.e., a public defender). The question of whether one can afford a lawyer is answered by determining one’s “indigent” status.Fort Lauderdale criminal defense attorney

The question of one’s indigent status is one many of us don’t give a second thought to, but it’s made front-page headlines of late because of the recent high-profile case of the questionable indigent status of accused Parkland school shooter Nicholas Cruz. The 20-year-old is accused of carrying out one of the deadliest mass school shootings in U.S. history, killing 17 students and teachers. He has reportedly confessed and faces the death penalty.

Initially, he was appointed a Florida public defender after being deemed indigent. However, Law.com now reports he is anticipating a $432,000 life insurance policy payout following the recent death of his mother. His Broward defense attorney is now seeking to be removed from the case, arguing state law prohibits service of public defenders for defendants with financial means to higher a private Florida criminal defense attorney. The lawyer, with 40 years of experience, pointed out the defendant is now wealthier than most of those serving on his defense team and he has never had a client with access to as much money as Cruz. The average public defender in Broward County earns about $62,000. 

When the question of indigence first arose, Cruz anticipated receiving $25,000 from his mother’s estate – not nearly enough to cover the cost of expenses in a death penalty Florida criminal case 4 million pages of documentation and more than 985 witnesses.

Now that it’s been determined he’ll be receiving 17 times that, is he still indigent?

How the State Determines Florida Criminal Defendant Indigence

In Florida, per F.S. 938.29, judges can appoint a public defender to represent a person:

  • Whose income is equal to or less than 200 percent of the current federal poverty guidelines OR
  • Who is unable to pay for the services of a private attorney without substantial hardship to his/her family.

Federal poverty guidelines are updated every January by the U.S. Department of Health and Human Services. For instance, the federal poverty guideline for a single person in 2019 is $12,490. Therefore, one way to qualify for indigent status for purposes of a Florida public defender appointment is to double that figure –  $24,980 – and ask whether a defendant makes at or below that much. If so, the person would qualify.

The question for Cruz is not just whether he makes more than that, but whether he’d be able to cover the cost of a private criminal defense lawyer without significant hardship. As our Fort Lauderdale criminal defense lawyers can explain, that means taking into account not only a defendant’s financial means, but also the size and scope of the case.

Here, as we mentioned, the case is massive. One must take into consideration not just the amount of time defense lawyers pour into the case, but also the cost of depositions, gathering expert witnesses, reviewing transcripts. Forgetting even court costs or civil litigation, that alone could drain $430,000 fairly quickly. His attorneys have estimated the defense team’s costs would at least near the half-million dollar mark.

The Benefit of a Private Fort Lauderdale Criminal Defense Lawyer

For this particular case, Cruz’s defense isn’t likely to change much whether it’s in the hands of a public defender versus a private criminal defense lawyer. He’s already confessed, and most agree that aside from suppression of certain evidence, a defense of insanity is the most likely course of action.

However, the majority of other criminal defendants in Florida do benefit by hiring a private defense attorney. This has nothing to do with the quality of the attorneys in practice in public defenders’ offices. Many are quite good. Rather, it has to do with the time they can devote to each case.

The Florida Bar Association penned an article a few years ago noting that budget cuts had rendered the right to counsel “virtually meaningless” – because no defense attorney could devote adequate time to their case.

This is not to say one can never expect adequate counsel from a court-appointed defender. However, whenever possible, most find it preferable to hire a Fort Lauderdale criminal defense lawyer who can devote more time and energy to defending their case.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

The Parkland School Shooter Will Be Wealthier Than His Defense Team. Now What? April 25, 2019, Law.com

More Blog Entries:

Hidden Cameras Used by Florida Law Enforcement Come Under Fire, March 4, 2019, Fort Lauderdale Criminal Defense Lawyer Blog