My son is currently awaiting his Final Pre-Trial and is in the local jail. He and I are having a disagreement about his public defender (would love to get him another lawyer, but don't have the $2000 retainer fee and $200/hour) he says that she won't defend him properly and won't take his calls, but I thought lawyers had to speak with clients if so requested, or is a public defender just to show up for the case hearings. He keeps saying he took the plea deal, but according to CCAPS, she pleaded Not-Guilty by mental defect. Lawyer won't speak to me and I have called, emailed and faxed. Also, if he didn't understand what he was signing by waiving his pre-trail, could that be used against him? His understanding is that of a 8 y.o. He has been charged with a Felony G and H & misdemenors.
The lawyer can't speak to you or respond to your barrage of requests without written consent from your son to discuss the case with you, which you suggest he may not be competent to give. If he is incarcerated, and wants to speak with his lawyer, he needs to make a written request for a jail conference. Cold calling the office of a public defender who spends most of their day in court, and complaining when they don't return the call of someone who doesn't have unfettered access to a phone is almost guaranteed to fail.
Given that this post is being made immediately after two short holiday work weeks may also be a factor.
If your son can provide written consent, get it, and make the time to show up for the next court appearance to see what transpires. Taking the word of someone with the understanding of an eight-year-old child regarding the status of the case isn't going to get you anything but frustrated. Good luck.
Well, for starters, there are two types of lawyers generally classified as "public defenders," so you are aware:
1.) Lawyers who actually work for the Office of the State Public Defender (SPD)
2.) Lawyers -- myself included -- who take appointments from the SPD to help spread out their case load and deal with conflicts of interest within the office (such as when there are multiple co-defendants in a case)
If you look on CCAP, you should find that attorney's name, and I would go to www.wisbar.org and look that person up to determine which of the two categories the attorney fits in.
There is a perception that the people who take public defender cases -- be they by appointment or because they're employed there -- are somehow different from the lawyer in a fancy suit who charges $200/hour for his time. The truth is, however, that there is no legal difference between the two, and the ethics that govern "regular lawyers", so to speak, aren't any different than the ethics that govern "public defenders." Frankly, there really isn't always an intelligence difference either; some of the most brilliant lawyers I've met regularly take SPD cases. All lawyers need to keep their clients updated on the progress in the case, need to zealously represent them, can't overbill or waste their time, etc. That being said, the reality is that in this economy, a lot of lawyers have a lot of cases -- ESPECIALLY those who are actually employed by the SPD -- and so they aren't able to drop everything and run to their incarcerated clients as soon as they want to talk. And, frankly, jails are not always the best at getting messages to attorneys, so what may seem like a lawyer not willing to take your son's calls may actually be a lawyer who didn't get half the messages, or a lawyer whose office doesn't accept collect calls from jails; I've had a number of clients who try to call, and even as I'm sitting right by the phone waiting for the call they can't get get through. I like to think that I do a good job at keeping my clients updated, but if my client writes me every other day looking for updates on the case and I have nothing new to tell them, I may respond to several of their letters with one overarching letter.
As for the Not Guilty By Mental Disease or Defect (commonly known as an NGI plea), that may have been a strategic move on the attorney's part; to qualify as an NGI, the defense needs to prove that even if a person committed a crime they either didn't know the difference between right and wrong OR knew but were incapable of conforming to what was right, and if you think you might raise it sometime during the case you generally need to raise it early on in the process. If your son really does have the mental capacity of an 8 year old, I might want to start down the NGI road too just to be safe. At worst, the examining psychologist says NGI doesn't apply, and then you proceed like every other case.
My point is this: I'm not saying your son's wrong, and I'm not saying the attorney's wrong. I don't know everything there is to know about the case, and I'm not going to cast aspersions on how another lawyer handles his or her case because I wouldn't want them doing that to me. I've known attorneys who do a terrible job at keeping clients updated; I've known clients who call their attorneys every day, even when nothing new has occurred, and then get upset when they're not the #1 priority at all times for the attorney. The best way to handle this kind of issue is to make an appointment to sit down with the attorney and talk to him or her about the progress of the case, assuming your son has consented to his lawyer disclosing that information to you (which not everyone does; I've had clients who don't want their parents to know anything but won't admit that to them.) If your son's lawyer is reasonable, he or she will make time for you, because none of us want to make it seem like we don't care about our clients. Try sitting down with him or her first
The responsibilities of a public defender is no different than any other attorney, that being a duty to keep the client informed of the status of their cases and to zealous representation. That being said, public defenders are good attorneys, often with large case loads, and do not always have disposable time to consistently meet with their clients. Unfortunately, its important to have a relationship with an attorney where your both communicating on the same page, and you don't get to choose your appointed attorney. I realize costs is always a factor when it comes to hiring a private attorney, but sometime the costs of not are not realized until its often too late.
Not guilty by reason of mental defect is a plea and is a guilty plea if it is not paired with an additional plea of not guilty. There are three basic phases to a NGI (not guilty by reason of insanity or mental defect): (1) whether a person committed the offense; (2) whether the person may avoid criminal liability for the offense due to mental defect or disorder; finally (3) if a person is deemed to have committed a crime but is incompetent for purposes of criminal liability, then the court must determine whether or not they will be treated in an institutional setting or in public and for how long.
Generally there will be a determination of competence before a court will allow a defendant to enter a plea or sign any waivers. However, competence to assist in one's defense doesn't require much under the law. A person may be institutionalized for months for competence training if a competency determination cannot be made or if the person is deemed incompetent to assist in their own defense.
First, I agree to Attorney Witt that your son should IMMEDIATELY put in a written request with jail staff for a meeting with his attorney. I have represented people in many counties throughout Wisconsin and EVERY jail has a process by which requests for meetings with an inmate's attorney will be sent to the attorney.
Second, every attorney in Wisconsin, no matter the type of law, is obligated under our Ethical Rules to maintain communication with a client. As above, the son has an obligation to communicate with his lawyer by putting in the written request. But, once made, your attorney now has an ethical and legal obligation to respond and respond quickly.
Third, if you want to help your son, I also agree that you need your son in writing to give his attorney permission to communicate with you. Given the possible cognitive disability you are describing, I think your active involvement is critical. All criminal court hearings are "open" so you should feel free to attend and perhaps try to speak with the attorney before or after the hearing.
Finally, the cognitive disability you describe, puts your son in a rather unique situation for his defense attorney. We have a specific ethical rule that governs an attorney's responsibility when their client is "under a disability". This is a very complicated and difficult situation and I STRONLY recommend you contact a criminal defense attorney with experience dealing with client's who have special limitations or disablities.
At the outset, the attorney would not be permitted to speak with you without permission. Many public defenders do not converse with family members, it more than doubles the workload. Your son is the client. Is your son calling collect? I do not know of any public defenders who take collect calls. Under these circumstances, where your son is limited and appears to be confused as to the case, it seems to me that most public defenders would agree that a jail visit is needed. I advise clients to write to me, and usually have the letters within two days. That allows me to prepare for a jail visit, for example, taking any needed materials.
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