Will I Get a Free Lawyer for My Petit Larceny Case?
By: Don Murray, Criminal Defense Lawyer with Shalley and Murray
The Government isn't in the business of providing universal legal care to all who are arrested. Think of the controversy that was caused by the suggestion in recent months that the Government ought to be in the business of providing universal health coverage for every citizen. In some parts of this country this concept was met with outrage, anger, and defiance, as if the very foundations of what it meant to be American were at stake. And this was to provide health care to make people who are sick better and prevent people from getting sick.
If the idea that the Government should provide universal health coverage is such a disasterous blow to freedom and democracy, how horrible would the expectation be that the Government will provide universal free legal services for all who are accused of crimes regardless of their income or circumstances?
In reality, The Legal Aid Society is not there to represent anyone and everyone who chooses not to retain counsel. Organizations like the Legal Aid Society draw their funding from a variety of sources, mostly Governmental, because it was held in the United States Supreme Court case Gideon v. Wainwright, that indigent people must be provided free legal services when they are charged with crimes. The Sixth Amendment of our great Constitution requires the Government to pay for legal services of indigent people - but not all people. The Legal Aid Society is committed to the notion that indigent people deserve the same level of representation that is available to people with greater means.
In these days of Government cutbacks and budget woes, you can imagine that the Legal Aid Society and our Courts are more vigilent than ever at making sure that the people who receive free legal services are in fact indigent.
If you present yourself to court and you do not have a lawyer, even on a petit larceny charge, you will be screened for eligibility by a Legal Aid Society lawyer. Especially these days, The Legal Aid Society takes very seriously the issue of eligibility for their services. Your eligibility for their services will be established according to guidelines based on Federal poverty guidelines. If you are found ineligible because you are not in poverty (for example, if you have a job or own real property) the Legal Aid Society will NOT represent you. Your case may be heard that day at some point as a mere matter of convenience for the Court, but the lawyer will advise the judge of your ineligibility and the judge will order you to hire your own lawyer.
Be aware also that Judges are extremely vigilant, especially in these days of severe budget cuts in the Court system, about eligibility for free lawyers. When Court staff is being cut every which way and the judges themselves are asked to do more with less every day, Judges are more and more insistent that taxpayers' money not be spent providing free legal services for people who are not in poverty. That means that in some cases, Judges have overruled an initial determination of eligibility for free counsel and insisted that people retain their own counsel.
Judges do not take terribly kindly to being ignored in this respect either. I have seen situations in which people, ordered to retain lawyers return to court unrepresented perhaps expecting that the Court will forget about it or give up. Courts will often require people who ignore their rulings to return to Court every single day until they return with a private lawyer.
At a certain point, where a person who is deemed ineligible for free legal services refuses to retain counsel, judges have the power to hold a hearing and decide that the person is intentionally waiving their right to counsel and insist that the case proceed in the absence of counsel.
Both The Legal Aid Society and The Courts take eligibility for free legal services extremely seriously and watch with a vigilant eye to make sure that the people who receive free legal counsel are truly the impoverished.
The actual guidelines are based on yearly income and assets compared with number of people in the household. As a general rule, if you own real property, you should not consider yourself indigent and therefore not consider yourself eligible for a free lawyer as per the Sixth Amendment to the United States Constitution. If you are employed full time, it is conceivable, depending on the number of dependents and your living situation that you could still be considered indigent, but be prepared to present to the Court documentary evidence of your situation in order to justify the City of New York providing free legal services.
Therefore, if you are employed, or if you own real property your assumption should be that you do not qualify for free legal services. You would do well for yourself and perhaps save yourself a return trip to court by arranging for counsel prior to court (especially if you received a desk appearance ticket).
If you think you might qualify for free legal services because you are in poverty, you will need to provide evidence (such as prior years' tax returns or evidence of public assistance) in order for the Legal Aid Society to agree to represent you, even in a petit larceny case.