Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Getting a Public Defender

You may not know that getting a public defender in Utah is not easy. First, it has to be a criminal case, not a civil case. Second, you have to face actual jail time or imprisonment. In Utah, it is common for a prosecutor to amend the charges so that they are only seeking an “infraction” instead of a misdemeanor. Third, you have to meet eligibility guidelines based on income, which are are surprising low.

The Sixth Amendment guarantees a defendant the right “to have the Assistance of Counsel for his defence.” For over fifty years now, the Supreme Court has held that defendants who cannot afford a lawyer must be appointed counsel, but there are a few exception.

Many are not aware that you will not be appointed a lawyer in a civil case. If, for example, a person sues you for breach of contract and says you owe them $150,000, no counsel will be appointed for you. You will either have to defend yourself or figure out a way to raise the funds for an attorney. Civil cases can have severe consequences such as losing your car or home.

Second, you have to face actual jail time. A 1970 case, Scott v. Illinois, said that although a charge may be criminal, counsel does need to be appointed if the defendant is not facing jail time. Most criminal charges have at least the possibility of jail time, but prosecutors are allowed to tell judges they are not seeking jail time. A defendant’s opposition decides whether or not counsel will be appointed. Utah Prosecutors frequently amend charges down to infractions, which are lesser charges than misdemeanors. Infractions are usually small offenses like speeding, but there are real world consequences to being convicted of an infraction. A background check will often reveal convictions for infractions, and many prospective employers now routinely use background checks. A background check could easily show, say, an assault conviction from a bar fight, but the defendant is never going to get the opportunity to explain that it was “just an infraction.” Employers just hire someone else.

Finally, financial eligibility for a public defender has a lower income threshold than most people realize. In Utah, the judge should appoint a public defender for people who are at 150% or below of the federal poverty guidelines. For 2013, a single person with no dependents needs to make less than $17,235 to be appointed a public defender in Utah. Many lawyers, myself included, will lower fees for someone in such a situation, but it will not be easy to pay if you are just above the threshold.

Nonetheless, if you are in that boat, it is imperative that you get the money, perhaps borrowing from family and friends, because even a case that is “just a misdemeanor” will affect your life for years to come. Once a charge is in a computer system, it will always be there.

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Public Defenders in Utah

The Salt Lake Tribune had an opinion piece earlier this week that highlighted the need and problems with the public defender system in Utah. According to the article, 48 states fund and supervise the process for ensuring representation for the indigent. Utah is one of the two states that do not. Each county devises its own system for people who cannot afford their own lawyer. Many counties spend as little as possible on public defenders, meanwhile providing ample resources to their prosecution departments.

In Gideon v. Wainwright, the Supreme Court held that state courts are required to provide counsel in criminal trials for people who cannot afford a lawyer. Earlier this year, we celebrated the 50th anniversary of Gideon, but still Utah does not have a statewide system for defending the indigent.

It really is important that everyone be given a proper attorney and trial. It would be hard to overstate how important it is to have a competent attorney who has the time to dedicate to an individual case. Everyone in Utah should let their representatives know that they do not approve of the current situation.