Are You Eligible for a Public Defender if You Are Facing Federal Charges?

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: Are people eligible to get a public defender in federal cases?

A Criminal Justice Act Attorney May Represent You

Acacia Law: In the federal system, if the government is seeking incarceration, you are entitled to have a public defender appointed to you to defend your case. The public defender in the federal system is kind of a patchwork. You have public defender offices with attorneys who are employed by the federal public defender but they also rely on what are called "CJA attorneys.” CJA stands for Criminal Justice Act, and these are private attorneys who are under contract with the government to provide representation.

In a Federal Case, Which Option Is Best For You? A Public Defender or a Private Attorney?

Interviewer: I'm always having this debate with state criminal defense attorneys but in a federal case, are public defenders skilled and experienced? Is it always better to have a private attorney or what's the difference?

Acacia Law: I think it's like anything else in this world: there are competent ones and there are less-than competent ones. There are some good public defenders. There are some bad public defenders. There are some good private attorneys. There are some really bad private attorneys.

Have Questions Prepared in Advance and Spend Time with the Attorney You Are Considering

So I think what people need to do is spend the time to find out more about the attorney that they're considering hiring and to ask a number of questions. How many cases have you handled? What kinds of cases have you handled? What certifications do you have? What's your disciplinary history? Before you make a decision, it is best to spend the time asking those kinds of questions.

Do Public Defenders Have a High Number of Cases?

Interviewer I've heard, at least from the state side, public defenders tend to have very high caseloads, so it makes it a little bit difficult to get personal attention from them.

Acacia Law: That's absolutely true. I say that speaking as a public defender. I did work as a public defender for 11 years, a long period of my career.

A Private Attorney Is Likely to Have a Substantially Smaller Caseload

Interviewer: How would you compare the average caseload you had versus your caseload now?

Acacia Law: My caseload is nowhere near as high as when I was a public defender.

Interviewer: So you're able to spend a lot more time with each client.

Acacia Law: Absolutely, absolutely, and that's a huge difference. The first job I had after law school was with a private law firm up in Flagstaff doing criminal defense work for this firm. Then I came to Tucson and went to work at the public defenders office. I walked into my office and the attorney who was leaving pointed at these file cabinets and said, "There you go. Good luck." There were over 270 cases.

When I was with the private firm in Flagstaff, a partner and I were probably handling between the two of us, 40 to 50 cases.

Interviewer: Do you deliberately limit your caseload now to make sure you can spend a lot of time with each client?

Acacia Law: Yes, absolutely.

Is the Cost of Defending Federal Charges More Expensive Than State Charges?

Interviewer: Does federal defense tend to be more expensive than state defense?

There Are More Costs Involved in the Defense of a Federal Charge

Acacia Law: It does. It does and the reason it does is the stakes are typically higher because of the sentencing guidelines and because of the way the discovery and the disclosure process works. Because of these factors, the attorney has to spend a lot more time doing investigation. Typically, you're going to need to hire a competent investigator to help you.

Interviewer: You have to literally pay to gather evidence on your behalf you mean, right?

Acacia Law: Yes, that's right.

If You Hire a Private Investigator, What Can Be Accomplished?

Interviewer: So what kinds of investigations will the private investigator conduct? Will they interview the federal agents?

Acacia Law: Well, they can't interview the agents. There's no right to do that. You can ask the agents if they'll agree to be interviewed but they can refuse and that's that. But what you can ask them to do is find out who was in the vehicle that was behind them, find out who was in the vehicle that was in front of them, find out who was working at the store where they parked their car, find out whether there was any video in this parking lot. The other value that the investigator can bring is an attempt to find mitigation evidence.

An Investigator Can Attempt to Locate Evidence That May Mitigate the Penalties

Interviewer: That's evidence that would help prove the outcome of the case possibly for the defendant?

Acacia Law: Exactly. So the investigator goes out and talks to some other eyewitnesses at the scene that are mentioned but the federal agents never talked to. They look into any aspect that may help the defendant.

Since the Federal Law Enforcement Officials are Not Required to Comply with Discovery, a Defense Attorney Is Not aware of all the Components in the Case Against His or Her Client

Interviewer: I see why all of this is required because essentially the feds have their cards hidden, or at least some of them, so you don't know what they're going to bring in. You don't want to be surprised at trial.

Acacia Law: Exactly. So you're trying to avoid the surprise. But here's the other thing: It's a double-edged sword. So whereas in the state system, as a defense attorney you've got to put all your cards on the table just like the prosecutor, in the federal system, you don't necessarily have to. So you can spring some surprises on them as well.

It's called "trial by ambush.”