Procedure for Appointing Trial Counsel (Judge John Irwin)

Transcription

1 Procedure for Appointing Trial Counsel (Judge John Irwin) State Colorado (see pdf) Missouri (docx.) Virginia (see rtf) Procedure West's Colorado Revised Statutes Annotated Currentness Title 21. State Public Defender Article 2 Alternate Defense Counsel Alternate defense counsel--policy commission West's Colorado Revised Statutes Annotated Currentness Title 21. State Public Defender Article 1. State Public Defender (Refs & Annos) Public defender--policy commission Missouri has a State Public Defender System. Sections RSMo, et seq. It is not adequately funded, but that's another issue. From the trial bench perspective, if appointment of counsel is required in a criminal case, the Public Defender is appointed and that office then assigns a particular attorney to the case. If a conflict exists the Public Defender System is responsible to find and assign conflict counsel. It may also hire private counsel, if necessary. I'm not aware of their process in contracting with private counsel, but, I assume as a state agency, they have an open and transparent system in place to do so. I would suspect that if that was not the case, some attorney somewhere, who felt slighted, would have challenged it. I'm not aware of any claims of bias in the assignments. Of course, the Public Defender is subject to all nondiscrimination laws in its employment practices. On the juvenile side, we have no specific rule or statute governing the procedure for selecting appointed counsel. It is up to each individual trial court. Some courts, particularly in the more densely populated areas have a systematic process for making such appointments. In the more rural areas, it's strictly within the discretion of the appointing judge. Of course, each of the appointing judges are subject to the provisions of the Code of Judicial Conduct related to all appointments made by a judge. Virginia for many years had only court-appointed attorneys to represent indigent accused. Each court established a list of those attorneys who were deemed qualified at various levels of the court system. It now has in place an Indigent Defense Commission which oversees the Public Defenders Offices and the certification of persons qualified as court-appointed counsel in those cases in which the local Public Defender's Office has

2 conflict and in those areas where there is no local Public Defender's Office. I have attached [or at least tried to attach relying on my poorly developed computer skills] pertinent statutes relating to indigent defense here. As in other states, our Public Defenders are not paid enough and have limited resources. There is a separate Public Defender Appellate Division, whose work load, in my judgment, is impossible, thought they do a good job. Those private attorneys who still take court appointed cases are woefully underpaid, and that list continues to shrink. The fees are capped regardless of the number of hours spent on the case, though the legislature has provided some additional money [but no where near enough in my view] and a process where the court-appointed counsel can seek a waiver of the cap in cases with justification. The folks in our Public Defender Commission, I'm certain, would be delighted to share their experience with the folks in Nebraska [or elsewhere] should that be requested. New Jersey (docx) (See attached file: Indigent Defense.10.rtf)(See attached file: Indigent Defense.11.rtf) (See attached file: indigent defense.3.rtf)(see attached file: indigent defense.4.rtf)(see attached file: indigent defense.5.rtf) (See attached file: indigent defense.6.rtf)(see attached file: indigent defense.7.rtf)(see attached file: Indigent Defense.9.rtf) (See attached file: indigent defense.rtf)(see attached file: indigent defese.2.rtf) In New Jersey, the Public Defender has jurisdiction to represent all indigents charged with indictable offenses -- that is a case with a statutory maximum of six months or more. See N.J.S.A. 2C:1-4. The role and jurisdiction of the Public Defender is detailed in N.J.S.A. 2A:158A-1 et. seq. The Public Defender, Assistant and Deputy Public Defenders and Assistant Deputy Public Defenders are full time positions. The defendant may apply for the services of the Public Defender on or before first appearance, and indigency is reviewed by the courts. By statute, the Public Defender represents defendant at trial (and all pretrial proceedings) and through direct appeal, petition for certification to our Supreme Court (and on appeal to that court if certification is granted or there is an appeal as of right by virtue of a dissent in our court) and on the first petition for post conviction relief. The assignment of counsel (the Public Defender is required for good cause by the court on a second or subsequent petition for post conviction relief. (This is all spelled out in part III of our court rules). The Public Defender also may become involved in federal habeas for her clients as a matter of discretion.

3 The Public Defender has a full time staff in each of the counties and an appellate section. She also has authority to retain designated counsel at the trial and appellate levels for conflict and multiple defendant cases. There is also a separate section and designated counsel for ineffective assistance of counsel claims. I have never heard any complaints about the selection of counsel from counsel, and from my observations of the Public Defender's office at all levels, there seems to be a balance in all respects. Given the needs of the Public Defender for designated counsel assignments, I believe most people who want such assignments by the Public Defender as attorney of record get some work (and there have been a few cases in which there have been disputes when counsel have been removed). Hawaii (docx) Non-indictable offenses are handled differently. Recently, the State adopted a municipal public defender system for those indigents charged with an offense which involves a potential sentence of imprisonment or "magnitude of consequence" as defined by our cases. This was done because since 1971 counsel had been assigned in those cases off a rotation list by the County Assignment Judge, see Rodriguez v Rosenblatt 58 N.J. 281 (1971) and Madden v Delran Twp., 126 N.J. 592 (1992), the attorneys were upset by the required "pro bono" assignments in such cases. A sentence of "magnitude of consequence " includes any jail time, or significant suspension of a drivers license or fine. If assigned at the municipal level, the indigent defendant usually gets counsel assigned for the trial de novo at the county level (and certainly gets it if he received a sentence of magnitude or consequence; a sentence cannot be increased at the county level), and for appeal an to us. See R. 2:2-2 and 2:7-2, and R. 3:23-8(a); 7:3-2. The assignments are made off the rotating list prepared for each attorney with a principal office in the county. Every attorney practicing law in this state has a principal office state for this purpose. As a result, when I decide counsel is required on a non-indictable conviction appealed to this court, either I assign the same counsel because that person did not file the notice of appeal as required and defendant applied for counsel pro se) or in most cases have the clerk assign off the county list, so I don't know the lawyer assigned. An assigned lawyer can asked to be relieved for specific reasons. Given the lists there has been no claim of unfair discrimination that I have ever heard. See word document

4 New York NCSC See pdf file From: Hurley, Gregory Sent: Monday, October 05, :09 PM To: John Irwin Cc: Hannaford, Paula Subject: Appointment of Counsel in Criminal Confict Cases Judge Irwin: Let me first apologize for the delay in the response to your inquiry. There is a limited amount of published information on the issue of the appointment procedure for criminal cases when there is a conflict with the public defender system or a public defender system does not exist. The Vera Institute published a report in December of 2002 called "Good Practices for Federal Attorney Programs." They looked at the process for selecting panel attorneys for cases that the federal public defender offices were conflicted. Their focus was on methods to ensure that panel attorneys were qualified to handle federal criminal appointments and they developed a model protocol for achieving that goal. This is model/best practices study for the selection of court appointed attorneys. The link is The Spangenberg Group prepared a report in December of 2006 called State and County Expenditures for Indigent Defense Services in Fiscal Year The primary purpose of that report was to look at the funding systems for indigent defense on a state by state basis, however, it does have a small amount of information regarding the appointment of conflict counsel. For instance, it mentions that in New Hampshire the Judicial Council administers assigned counsel and contract defender programs. 05_Expenditure_Report.pdf. The Conference of State Court Administrators has a listserv called the COSCA listserv which is managed by the NCSC but is independent from the standpoint that COSCA members exclusively control the content of the listserv. The Nebraska state court administrator could pose this question to the state court administrators in the other 49 states. COSCA listserv questions due typically get a good rate of response. I wish I could have located a more definitive answer to your question but it does not appear that one exists. If I can be of any further assistance, please feel free to contact me. Gregory S. Hurley, Esq. Knowledge Management Analyst National Center for State Courts 300 Newport Avenue Williamsburg, VA, Direct:

5