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"Presumed Innocent Until Proven Broke" (Updated)

Houston lawyer, Ron Mock, is known to remark that in the criminal justice system "you're presumed innocent until proven broke," which I've always interpreted to mean that it's often the lack or exhaustion of the Defendant's resources that results in a conviction rather than actual or demonstrable guilt, a subject I've written about before.

What many people fail to realize and lawyers often fail to remember is that under the rulings in the U.S. Supreme Court Case of Akke v. Oklahoma and the Texas Court of Criminal Appeals decision in Ex Parte Briggs, defendants may apply to the Court for funds for experts - even if they have retained counsel.

The issue is, then, whether one can get enough funds from the Court to do anything meaningful with. I have personally known lawyers to advance expense and expert money out of their own pocket - and then have the devil of a time trying to get it back from the Court.

Nervi bellorum pecuniae

Update: In response to some comments and questions, I will illustrate the uneven resources between the prosecution and even the best defense in a criminal prosecution.

In a case, one can make a list of all government witnesses (including police and other government agents or experts), prosecutors, and their support staffs, and research their salaries.

(Public employee salaries are public record. Employees of the State of Texas may be searched here. Assume for the purposes of a prosecution cost analysis fifty work weeks of forty hours each for a total of 2000 hours. Divide the salary by 2000 to get the hourly rate of the employee.)

Estimate, conservatively - the amount of hours each will spend in trial.

Then, to be conservative - because the truth is likely much higher - one half hour of out of court work for each in court hour of work or testimony.

For each person, add those two together, multiply by their hour ralte, then increase by 20% to account for social security and benefits - and then you will have a bare minimum estimate of what the government has spent on prosecution.

This number is likely extremely low as it will not account for all other investigators, lab workers, supervisors, etc. that participated or supported the investigation, the cost of the vehicles, buildings etc. used, and probably isn't even a fair estimate of the time spent by the people who are known.

But as lowball a guesstimate as that probably is, it will almost always be significantly more than the resources that most Defendants have access to. Moreover, beccause of economies of scale - the government is able to obtain investigations, testing, analysis, and expert testimony at a much cheaper rate than a Defendant can purchase on the open market.

For example, a top DPS forensic scientist at their lab may have an annual salary of $80,000 per year costs the government (including 20% markup for benefits etc.) $50 per hour. That rate is the same whether they are in the lab or on the witness stand. An expert to analyze the same biological sample will charge a minimum fee for out of court work, plus an hourly rate, then travel time, then a much higher rate for testmony. In a blood test dwi - the analysis, trial preparation, and testimony that costs the government hundreds or a few thousand dollars - will cost a Defendant five to ten thousand - for a single expert.

But due to the large numbers of in-house experts or investigators available, the government often calls numerous investigators and/or experts in its cases whereas the Defense is lucky to be able to afford one or have a court apportion adequate funds for one.

In a recent felony trial case of mine, the government noticed approximately 40 expert witnesses. Most of these were paid government employees who had spent at least an entire work day or more investigating or working on the case. Some of them had worked on it for weeks at a time off and on over a period of years prior to ever being set for trial. A bare bones estimate of their salary expense alone for their time on that case quickly ran into six figures before I stopped counting.

And yet often, when the defense asks for a mere fraction of that amount, as we did in that case, for one investigator or expert to work on behalf of an accused who faces life in prison or is indigent or has become virtually indigent as a result of prosecution, it is treated as though it is some exorbitant luxury.

Then, when trial comes a single defense expert has to take the stand and be subject to cross-examination by the prosecution wherein they will be challenged about the likelihood that all of these other experts are wrong and they alone are right -and then be accused of delivering this opinion only because they were paid to. As if the government's experts work for free or the defense had the means to throw numerous in-house experts at the problem. The government overwhelms the jury with numbers and preys upon the perception of the honest public servant versus the single paid expert willing to prostitute and perjur themselves for a price all the while ignoring the uneven nature of the playing field.

If it sounds a bit unfair, that's because it is.

Categories: Criminal Defense, Ethics

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