Most people have heard the Miranda Warning recited on television, if not in real life. It’s starts with “You have the right to remain silent,” and goes on to state “You have the right to an attorney. If you cannot afford an attorney, one will be provided [or appointed in some areas] for you.” That last part about the right to an attorney is meant to give the accused the opportunity to equal protection under the law in accordance with the 6th Amendment (as well as to insure protection from compelled self-incrimination, but that’s a topic for another day). But if the accused is indigent—if they cannot afford an attorney, how does that work?
In Alabama, the State Department of Finance, Office of Indigent Defense Services (OIDS) oversees programs intended to ensure due process for indigent defendants “in a cost efficient and effective manner” (Alabama Department of Finance, Office of Indigent Defense Services, 2019) and pays the fees for appointed attorneys. Appointment of an attorney applies in criminal cases (most civil cases allow for contingency fees, so the attorney is paid a percentage of the judgement after the fact) where the defendant meets the State’s criteria (AL Code § 15-12-1). Depending on the county where the defendant is charged, the attorney may come from a local public defender’s office or a private practice attorney, since State law leaves it up to the presiding circuit judge to administer the indigent defense system in his/her jurisdiction (AL Code § 15-12-3). The law also sets the payment rate for appointed attorneys, $70 per hour as of this writing, and limitations on the total amount per case (AL Code § 15-12-21(d)).
Private Investigations & Expert Witness
What many lay people don’t realize is that the law also allows for other expenses associated with defending an indigent client, above and beyond the attorney’s fee. These other expenses can’t include “overhead” like the attorney’s office lease, light bill, or secretary, and if they amount to more than $300 per case, they must be approved in advance by the trial court. What they can include, however, are expenses for private investigators and expert witnesses that work on the case. OIDS sets the rates for those services via memoranda that are available on their website, currently $70 per hour for private investigators and between $30 and $300 per hour for expert witnesses, depending on education or field. If the appointed attorney petitions for and receives authorization from the trial court and follows OIDS’s requirements, the state pays those bills for the defendant. (AL Code § 15-12-21(d))
Is that enough? To most people, $70 an hour sounds more than reasonable. But remember those limitations on the total amount per case? Those can have a dramatic effect. Say for instance a defendant is facing a firearms charge, or unlawful possession of a controlled substance—Class C felonies. The law limits the attorney’s bill to $2000 on Class C felonies. That means he/she is only getting paid for 28 ½ hours of work—3 ½ eight-hour days. Look at it a different way: if the attorney spends 1 “normal” work week of 40 hours preparing for and taking that case to trial, he/she is only going to make $2000. That’s not $70 an hour, it’s $50 an hour. The more time it takes the attorney to prepare for the trial and see it through to conclusion, the less that attorney is making per hour. The limitation does increase with the severity of the charge, up to $4000 for a Class A felony (like murder or 1st degree robbery), but the more severe the charge, the more time it takes to prepare and conduct. A murder trial may last several weeks alone, not counting any preparation time.
Sounds Good, Right?
It’s no surprise then that an Appleseed study cited by the Equal Justice Initiative (EJI) revealed that in four Alabama counties, there were no motions filed by indigent defenders in 72.5% of the felony cases (Equal Justice Initiative, n.d.). Filing a single motion adds both prep time and court time, effectively reducing the attorney’s per hour rate. To compensate for this lower effective rate, many attorneys take on additional cases and work far more than the aforementioned 40-hour week. This is well recognized as a double-edged sword, however, as both lack of adequate preparation time and attorney case load have been cited as elements of an inadequate defense case on appeal. Worse, it can and has led to wrongful convictions.
Another common element in an inadequate defense appeal is lack of investigation. The same EJI report revealed that in 99.4% of the felony cases in those four Alabama counties, no funds for private investigators or expert witnesses were requested from the trial court (Equal Justice Initiative, n.d.). There are likely several reasons that private investigators are not being requested by indigent defense attorneys, but that is a topic for another report. What is important to note here is that indigent defendants can have their cases investigated by a professional, licensed private investigator working for their court appointed attorney. Bringing a private investigator on-board can and should help the attorney, giving him/her an additional person on direct-labor billing (not overhead) to the court to assist with preparing the case. Instead of spending 8 of those 28 ½ hours pulling court records, vehicle registrations, and locating and interviewing defense witnesses, the attorney could have a licensed investigator do that leg work and feed the information that results from it to him or her for their action. The result is good for both sides: innocent accused would be less likely to be wrongfully convicted, and guilty offenders would be less likely to win an appeal on the grounds of inadequate defense.
Echo 7 Foxtrot Can Help
Echo 7 Foxtrot, LLC stands ready to help by providing professional private investigation for indigent defense attorneys in Alabama. Based on your case summary, we can assess our ability to provide an investigator with the right skills, training, and experience for the case, and provide an estimated cost to perform the work. We will even work with the attorney to submit the necessary information to the trial court for consideration and approval. If we don’t believe we have the right private investigator for your particular case on staff, we will let you know that up front and offer some possible solutions and/or recommendations—we know that it isn’t enough to just bring on a private investigator, you need one whose work will stand up to the court’s scrutiny. Keep your overhead low and your success rate at trial high by giving Echo 7 Foxtrot, LLC a call. (334) 730-1211 or email firstname.lastname@example.org.
Alabama Department of Finance, Office of Indigent Defense Services. (2019). About Us. Retrieved from Alabama Department of Finance, Office of Indigent Defense Services: https://oids.alabama.gov/aboutUs.aspx
Equal Justice Initiative. (n.d.). Alabama’s Death Penalty. Retrieved from EJI: https://eji.org/issues/alabama-death-penalty/