OK. What does all that stuff down there, in the last post, mean? Nothing, until we get a handle on what it costs to hire a private attorney. If you look at most lawyers' websites, you'll see a lot of lawyer-speak on the subject of fees. Except this
site, where the talk is pretty straight forward, and this
site, which is a little more direct than most.
HypotheticalLet's look at the expertlaw numbers. These seem in the ballpark to me. Maybe a little high for some, a bit low for others, but pretty close to what I'd expect. And let's say our hypothetical defendant, Danny Gettinby, is charged with a moderately serious felony - let's call it Assault-injury resulting. It's a five year felony and Danny's had a couple of run ins with the system before. A juvenile disposition for grand larceny, a felony if he had been an adult, and an adult conviction for aggravated battery, a serious misdemeanor. So Danny's looking at some serious jail time, if not a prison sentence, depending on how serious the injuries were and whether there are any extenuating or mitigating factors.
Now, just to stir the pot a bit, let's give Danny a classic defense - some other dude did it! Danny admits to being there, and arguing with the victim (let's call him Vinny) but claims some unknown individual sucker punched Vinny from the back and gave him a kick or two for good measure when he was down. Then ran off. Danny was bending over Vinny, attempting to determine the extent of his injuries when the security guard, Sam Secure, came running up. Covered with Vinny's blood, Danny didn't look all that innocent.
To make matters even more interesting, he kept telling the police officers who responded to Sam's call that "I didn't want anything like that to happen." and "Man, I never wanted him hurt that bad." This despite the officers' repeated instructions to shut up and save it for the detective who would be assigned. Danny finally did shut up and refused to talk to the detective. Vinny doesn't remember anything much after he arrived at the club, (of course a bar type establishment is involved) several hours earlier, until he came to with Danny shacking him and saying "I'm sorry man, I'm sorry." The only other witness immediately present was Danny's girlfriend, Gina Goodgirl, who backs up Danny's version of events.
Now, to stir the pot a bit more - Danny is black, Gina is white, Vinny is white, and the other dude is black. Sam is white and the arresting officers are one black and one Hispanic. The argument with Vinny was over Gina and her kids. Gina used to date Vinny and has two kids by him. Both children live with Danny and Gina. Up to this point relations between Vinny, Danny, and Gina have been, if not exactly friendly, cordial and civilized. The argument started in the club (Club Chaos, a dance/jazz club) when Vinny became irate over Gina's refusal to change his visitation weekend because she and Danny were taking the kids to visit Danny's grandparents up-state. The argument became sufficiently heated that Bernard, the bartender/bouncer, asked them to "take it outside." They did, retiring to the mostly vacant parking lot. Bernard seems to recall one or two other patrons leaving at the same time, but he's not sure. During the argument in the parking lot, Vinny may have used a racial epithet in addition to hurling a slur or two on Gina's moral character. Danny says he doesn't remember any thing like that, but they were yelling "pretty good" at the time. Gina was crying and yelling at both of them and doesn't know who said what. Sam is positive he heard the N-word from around the corner as he made his rounds (that's what started him toward the area) but can't say who said it. By the time he got around the corner, Vinny was down and Danny was holding him by his shirt front, crying and saying something.
The local police routinely seek alcohol tests from all the participants in this sort of incident. In this case, Vinny's came from the hospital, with his consent, and showed a body alcohol content of .07%. Danny and Gina were given breath tests at the station. Danny's was a .06 and Gina's was a 0.00.
Because of the circumstances, the prosecutor has offered to plead Danny to an attempt, which reduces the charge to a relatively low grade felony with a maximum sentence of two years in a state prison or one year in the county jail. This essentially means there is no possibility of prison and a very good possibility of no more than three months county jail time. Danny insists he didn't do it and doesn't want to plead. So, how much money is this going to cost Danny and Gina if they want to hire a private attorney rather than take the PD or appointed counsel?
Looking at it dispassionately, if Danny wants to go to trial, he probably should not waive the probable cause hearing (who knows, he might get lucky and the magistrate will ash can the case) and will probably need two or three pre-trial motions to try and get rid of his statements and limit the testimony of Bernard and any other witnesses from the club. Figure pre-trial practice, including a half-day on the PC hearing (not that it will take that long, but's that how long you'll have to be in court, waiting) and another half-day (if you're lucky) on the motions, the time to prepare the motions, the time spent talking to the prosecutor, the time spent reading police reports and witness statements, client hand holding at $125 an hour, you're likely looking at $1,000-$1,500 just to get to the day before trial. And that's if you're happy with the police investigation and the local courts' dockets aren't too messy. As for the trial itself - many attorneys cap their daily fees at some set multiple of their hourly rate. Let's assume Danny's prospective attorneys all cap trial days at $600 a day or any portion thereof. This is probably a three day trial from voir dire to the return of the jury's verdict. $1,800 bucks there. Let's call the attorney fees $3,000 at this point. That'll probably cover any post trial stuff if there is a conviction. Now, let's take a wild guess at filing fees (if you retain counsel, most places require the same fees for court filings as in a civil case), transcripts of any hearings, especially the PC hearing, copying costs, paralegal costs. . . heck, let's just call it another $1,000 and say $4,000 as a ballpark.
Hang on - Danny wants to take a polygraph, and so does Gina. Sigh. Never, never, never let a client take a police polygraph unless you've had a reliable private examiner run them first. Just guessing here, based on local experience, but a reliable, retied police polygraph examiner usually charges $500 a pop. You may get a deal on a two-fer, if you can do both the same day, but let's not count on it. We're up to $5,000 without really trying. So that's the retainer Danny has to come up with. $5,000. Can he do it?
Let's add some facts. Danny works two jobs. He's a $10/hr machine operator at a local plastics plant. Forty hours a week, a little overtime every now and then, but not a lot. He also works weekends driving for a taxi/delivery/messenger service. That gets him an average payout of about $100 a week, all legit. He makes a few bucks on tips that he doesn't report, but not enough to matter. So he grosses $500 a week, on average, over the course of the year. That's $26,000 a year. He's in a low tax-bracket, just guessing here, but he probably gets to keep about 75% of the gross - $19,500 a year. Gina works part-time (two kids to care for, remember) at a local fast food joint where she makes $7/hr as a shift leader/cook. She averages 20 hours a week and grosses $140. She nets about $120 (two dependents, remember. Single head of household, too.) So Gina's bringing in a net of $6,240 a year. The two of them net about $25,000 a year. Essentially, Gina's pay offsets Danny's tax obligation. Sigh.
Based on my area of the world, and assuming Danny and Gina have middle-class aspirations, living expenses for a family of four are going to run about $500/month for rent and utilities and another $400 to $500 a month for food. That's half their take home and we haven't even touched on transportation and insurance and clothes and kid (Vinny pays nominal child support) costs and on and on and on. So no, in my opinion Danny and Gina do not have $5,000 to give an attorney. $5,000 is the amount of money this couple would scrimp and save and sacrifice to accumulate as a down payment on a house. Or to buy a decent used car.
Most criminal defense attorneys are going to ask for a retainer that will cover their estimated cost of doing whatever it is the client wants to do. After all, the three rules of private practice criminal defense work are 1) get the money up front. 2) get the money up front. And, 3) get the money up front. Yes, there are attorneys who will set up payment plans and the like, but you can't count on that.
This is where the idea that the State should shoulder some of the burden of defending people charged with criminal offenses comes from.
