Can an Indigent Get an Effective Defense Even With Retained Counsel?

A principal often overlooked by private criminal defense attorneys, is a defendant’s right to court appointed assistance where the defendant is himself indigent - despite the assistance of family and friends in retaining counsel.  Too often privately retained attorneys advise their clients that they will need private funds to retain necessary investigators and expert witnesses despite the fact the client is himself indigent.  Such an error can have the effect of denying the defendant an adequate defense and wrongfully accused persons find themselves convicted.

Every defense attorney will understand that there is no longer any “doubt that an effective defense sometimes requires the assistance of an expert witness.  This observation needs little elaboration. *** Moreover, provision for experts reasonable necessary to assist indigents is now considered essential to the operation of a just judicial system.”  Williams v. J.R. Martin (1980), 618 F.2d 1021, 1025.  This basic principle is now outlined in the American Bar Association standards on defense services.  The ABA standards require that indigent defense be provided “investigatory, expert and other services necessary to an adequate defense.”  ABA Standards, Providing Defense Services, 22-23 (1968).  The notes to the standards make the point clear; the “quality of representation at trial may be excellent and yet valueless to the defendant if his defense requires ... the services of a(n)...expert and no such services are available.”  Id.

But, many defense attorneys fail to recognize that there is a right to state funds even where counsel is privately retained but the defendant remains indigent.  This is rather common occurrence where family and friends expend all their precious funds to retain private counsel, but reserve no monies to retain the appropriate defense experts.  Where the accused remains indigent, he continues to be entitled to government funds.  Indigence “is not an absolute concept *** For example, a defendant’s resources may be drained by the expenditure of obtaining private counsel.  Thus while a defendant can afford private counsel, he or she may not be able to afford other costs of the case such as an investigator or expert witnesses.”  State v. Pasqualone (March 31, 1999), Ashtabula App. No. 97-A-0034, unreported.