Tom McCutcheon – Attorney at Law
Q: My son was arrested for possession of marijuana with possible intent to distribute. He had 15.2 ounces. He stayed in jail for one week because he couldn’t make his bond. Finally we got enough money to pay the bondman and he went back before the judge and the judge wouldn’t appoint him a lawyer. My son is on disability and can’t afford a lawyer and he needs help. What can we do?
Renee
Athens, AL
A: He absolutely needs a lawyer. The difference between simple possession, which is a misdemeanor (minor crimes punishable by no more than one year in county jail) and a distribution charge which is felony (serious crimes punishable by prison time and loss of civil rights including the loss of the right to vote, serve on juries, and all sorts of other impediments to living a normal life) is huge.
I don’t do criminal work but sat second chair in a case like this. Second chair means I worked for a more experienced attorney who tried the case while I watched. In that case, I believe to this day that the defendant claimed the marijuana so his son wouldn’t get in trouble. The defendant was charged with intent to distribute but the jury (partly through the efforts of this very talented lawyer) rendered a verdict for personal use possession and the judge fined the man $250.00. Had he been found guilty of a felony the consequences would have been severe.
In all criminal cases, including paternity cases and civil and criminal nonsupport cases which may result in the jailing of the defendant, in any court of this state created by authority of the Constitution of Alabama of 1901, as amended, when a defendant is entitled to counsel as provided by law, the court must determine whether or not the defendant is able financially to obtain the assistance of counsel.
Alabama Code §15-12-5 is the law about how a court decides whether someone is indigent (unable to afford an attorney). The court will require an affidavit of substantial hardship that lists in detail the financial resources available to the defendant and the court may order an investigation and report in determining whether someone is entitled to an appointed attorney.
Judges really don’t like people trying to represent themselves. It is usually very awkward to watch and most people just can’t manage the court system on their own. I can’t tell you why the judge is not appointing an attorney but if your son truly cannot afford one, I suspect one will eventually be provided.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-764-1124
