Q: An attorney represented my husband “mistakenly” due to a clerical error from the clerk of court. Is this legal? An attorney was accidentally”assigned to my husband’s case when he should have had a public defender because he had the same last name as the attorney’s other client. My husband is incarcerated and they wouldn’t take him to his hearing. The attorney (who now has discovered the error) no longer represents him, but requested TWO continuances in his stead. My husband never signed any papers for representation whatsoever. Had I not called to figure out what was going on, he would have been taken to his 3rd hearing with NO representation whatsoever. Plus, this case has jail time attached and is being dragged out now. Can I argue his right to a speedy trial? It will be over 90 days for a misdemeanor by the time his new court date arrives. And was this even legal? I want to clarify something for efficiency’s sake. This question is more prominently begging the answer as to whether it was legal for an attorney who had never seen or met my husband, nor did he have permission from him to represent him, to do so anyway, due to a clerical error? P.S- I am not personally trying to take on his case, I have since gotten him assigned a PD.
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The Court appointment process is in constant flux. There are PD’s, what we call “Regional Counsel” (a sort of second tier PD system with private lawyer’s who “contract” with the State to work part-time as quasi-PDs) and then CAC (or Court Appointed Counsel, a sort of specially appointed PD’s). With all of these variables it’s not inconceivable that a bona fide mistake was made.
Just as cops sometimes “benefit” from mistakes (i.e. there is a “good faith” exception for otherwise illegal acts) so too can Defendants, or, sometimes Defendant’s can be effectively penalized / prejudiced by a simple mistake as well.
Like I said before, the PD’s will be all over this issue. If there is any way at all to achieve a benefit or to use this screw up to your husband’s advantage then I am 1,000% certain that the PD will take full advantage of the same. PD’s (all defense attorneys actually) are used to being beaten down by a system which is realistically skewed toward the State, and they (we) therefore revel in any opportunity to cram the rule of law down the government’s proverbial throat.
I am happy to have been of assistance and I wish you and your husband the best of luck. Hopefully he has more to fear from you than the system. I also want to thank you for your kind feedback in choosing my answer as “best”. It is through feedback such as yours that others are confidently able to rely upon advise and seek counsel. Rest assured that I will be posting your question on my blog (link below) shortly.
Please see: http://habercriminallaw.blogspot.com/