The words chiseled in stone above the entrance to the U.S. Supreme Court building say, “Equal Justice Under Law.” A truly noble philosophy – in theory.
But in actual fact, there’s nothing “equal” about justice in this country, and we’re not talking about racial, ethnic, religious, or gender issues here; although they certainly are a factor. It’s a matter of just plain old “dollars and cents,” coupled with the statistical distribution of human capabilities. That is, the better the lawyer, the more money he/she can, and will, charge. This should not be surprising. It’s Economics 101 – supply and demand – the very bedrock foundation of capitalism. The better lawyers will be in higher demand – for those that can pay for them – and will consequently charge more money for their services. Lawyers are just like any other profession – doctor, mechanic, engineer, carpenter, tailor, chef, etc. – there’s a range of individual capabilities from “good” to “bad,” and the “good” one’s cost more money. There’s an old saying in the legal business: “How much justice can you afford?” There’s no secret – the more you can pay for an attorney, the more effective your defense will be; and – if you’re actually innocent – the better your chances of a just outcome.
The law has become so incredibly vast, intricate, and complex, it’s no wonder that there have to be legal “specialties” – tax law, corporate law, patent law, estate law, non-profit law, contract law, political law, insurance law, criminal law, and on and on and on. It’s so complicated, even the lawyers can get it wrong. But the better lawyers are better at getting it right and in presenting an effective and successful case.
If you are faced with having to defend yourself against criminal charges — to give yourself even a slim chance of success, you need to have an attorney to help you navigate the legal labyrinth; but attorneys cost money. In fact, attorneys can cost a LOT of money, and as noted above, the better the attorney, the more it will cost. For just a misdemeanor charge to which you do not accept a plea deal (because you’re innocent), it’s not uncommon for the legal fees to be $2,000 – $3,000, and most attorneys will want a substantial portion, if not all, of their fees paid up front. If you’re charged with multiple counts of felony crimes, the legal expenses go up exponentially. And the expenses don’t stop with just the attorney’s fees. They can, and do, also include things like:
- Cost of a private investigator
- Expert witness fees
- Costs of forensic laboratory testing
- Costs of copying documents and subpoenaing witnesses
- Fees for co-counsels
Where I live, the “standard” fee for a criminal defense lawyer is $250/hour. If you do the math, you’ll quickly realize that if your lawyer puts in 40 hours on your case, you’re in for $10,000. And just because you pay the “standard” fee, it doesn’t necessarily mean you will get a competent defense. There is almost no way one can tell if the lawyer they are about to hire is any good, but the old saying, “You get what you pay for,” generally holds true.
If the charges are really serious, the legal costs can be astronomical. For instance:
Example #1: the O.J. Simpson “dream team” that defended him in the criminal trial for the murder of Nicole Brown Simpson. The cost for his legal defense has been estimated at $3 million – $6 million, and that was in 1994. And it worked – he was acquitted in the face of daunting evidence of guilt.
Example #2: the Duke University lacrosse team rape case. The three boys were wrongfully accused of raping a party dancer, and the prosecutor on the case, driven by a looming reelection bid, engaged in egregious prosecutorial misconduct. However the boys’ families had the financial resources to field a powerful legal defense team, and charges were dismissed after a review by the North Carolina State Attorney General. The families’ total legal expenses are estimated at $3 million. If not for that; had they been typical middle class families, their innocent sons would be in prison today.
But be aware – an “adequate” or “good” legal defense is no guarantee of acquittal. I’ve been involved in more than a few cases in which we truly believe, or downright know, the defendant is innocent, and the family has had to sell their home, and cash in their life savings to pay for legal counsel in what, more often than not, turns out to be a vain attempt to correct the wrong visited upon them by the justice system. These families have been financially ruined, and they are victims of a system that, by it’s very nature, makes no attempt to level the financial playing field.
Because of the daunting expenses involved, it’s not uncommon for people, especially inmates, to try to “represent” themselves by filing pro se motions with the court to avoid attorney’s fees. But when people try to represent themselves, they invariably trip over the intricacies of the law, and they all too easily run afoul of the procedural and time bars built into the law, exposing themselves to great risk of shutting themselves out of any possible post-conviction relief should they eventually be convicted. Most commonly, people of meager means will wind up with a public defender, a court appointed attorney, or a lawyer who charges bargain rates but is less than competent. And my experience tells me that bad defense lawyers are responsible for as many wrongful convictions as anything else. The consequence of the fact that an adequate legal defense costs a lot of money, and a good legal defense costs a lot more money fall disproportionately on the lower socio-economic strata of society.
[I need to interject at this point that I know many excellent and dedicated attorneys who have committed their careers to working as full-time public defenders or staff attorneys for innocence projects. However, they are constantly handicapped by insufficient funding and huge case loads.]
Now, here’s the perversely ironic part. Money is no object for the prosecutor. The prosecutor is financed by your tax dollars. The prosecutor has a staff of attorneys, an office support staff, the police, and the crime labs – all paid for by the taxpayers. The defendant has to pay for his own attorneys, investigators, expert witnesses, lab examinations & tests, and all other case expenses. This does not make for a fair and level playing field. The prosecution has a monstrous financial advantage. To even come close to matching the financial resources that the prosecutor can bring to bear on any particular case, the defendants – and their families – must often spend to the extent of ruining themselves financially.
So, think about this. A wrongful conviction in which the family has exhausted their total financial assets produces an injustice many times worse than “just” sending an innocent person to prison, which in itself is abominable. Everyone is supposed to be guaranteed a “fair” trial with “equal justice under law;” but with a monstrous financial advantage for the prosecution and with the prevailing fee structures for defense attorneys, how can this possibly be the case? How can we call this either equal or fair?