Unpaid lawyer asks judge to excuse him from case

George Jones, a lawyer from Lamoni, Iowa, was assigned to represent a client who has been charged with a crime but could not afford his own attorney.  The state, as you may know, hasn’t been paying attorneys, court reporters and investigators who work on cases for indigent clients.  The money for the state’s indigent defense program ran out weeks ago. Legislators and the governor have been unable to strike a deal to pay the overdue legal bills because the issue is tied up with another, unrelated matter — a “Taxpayers Relief Fund” that Republicans want.

Jones filed the motion below, asking to be relieved of his duty in the case because the state hasn’t paid his bills. (The name of his client has been redacted, as have a few other items that would identify the case or witnesses).  Jones indicated in an email to Rep. Kurt Swaim (D-Bloomfield) that similar motions were filed in South Carolina a few years ago when a similar situation cropped up in that state.  

The Defendant, John Wayne Doe, by and through the undersigned counsel, moves this Court either for an order halting the prosecution in the above-mentioned matter and releasing Mr. Doe on his own recognizance, or allowing the undersigned attorney to withdraw from the case. This Motion is based upon the insufficiency of funds to cover attorney fees and overhead for the undersigned counsel in his efforts to provide the effective assistance of counsel to Mr. Doe. This motion is based upon the following facts and law which will be supplemented with evidence presented at the hearing on this Motion.

 John Doe, the defendant listed above, was charged with XXXXXXX and with XXXXXX.  On the first charge, Mr. Doe faces the possible sentence of up to 25 years, with an additional possible sentence of 5 years on the second charge. Based upon Mr. Doe’s indigent status, Mr. Doe qualified for court appointed counsel, and the undersigned was appointed to represent Mr. Doe’s interests.

 In this case, counsel has filed a motion for funds for expert assistance as follows:

1. To obtain an expert in chemical forensic examination, to review the procedures of the Iowa DCI laboratory in connection with their testing of items submitted to the state lab in this case, and to assist the defense in preparing to cross exam and confront such evidence.
2. To hire an independent forensic laboratory to conduct an independent examination of all drug evidence in this case.

In order to prepare for trial in this case, counsel will have to depose the two named witnesses, who are the arresting officer and XXXXX  XXXXX.  It is anticipated that the State will have to amend the minutes, adding someone from the State lab who has tested or will test the drug evidence. This witness will need to be deposed, and their techniques of analysis scrutinized by counsel, with the assistance of the expert in chemical forensic examination, funds for whose services were requested, as set forth above.  The state will have a right to depose this expert witness prior to trial.  In addition, counsel will have to locate an independent lab, obtain an order requiring the state to transmit the drug evidence to the independent lab, and to arrange the logistical details of coordination between the two labs….It is clear that preparation for the trial of this case will take many dozens of hours, as counsel will need to spend many more hours constructing and crafting an opening statement, cross and direct examinations, closing argument, and researching pre-trial motions as well as legal issues that may arise during trail.  The trial of the case is likely to take the better part of a week to complete.  Counsel estimates that to adequately prepare for trial, he will need to devote approximately 150 hours to the case.  The Defendant in this case has asserted his right to speedy trial, which means that all of the above work will need to be performed within 90 days of the filing of the trial information in this case (March 31), or within the next 79 days.

 Unfortunately, counsel is not in a position to continue his representation of Mr. Doe because there are no funds to pay counsel for his efforts.  On or about February 22, 2011, the Iowa Indigent Defense Fund ran out of money, due to the failure of the State legislature to adequately appropriate the funds necessary to pay the claims of contract attorneys, expert witnesses, court reporters, guardians ad litem, and interpreters, all of whom are paid from this fund, when the Defendant is indigent.  The Iowa legislature appears to be hopelessly deadlocked in a political stalemate regarding any future funding for indigent defense.  Despite the constitutional mandate that the State provide for indigent citizens legal counsel and the necessary tools to prepare their defense, the State has failed to do so by failing to fund the very program designed to do just that.

 Many federal and state provisions require that the government provide indigent defendants in criminal proceedings with counsel.  See eg. Sixth Amendment, U.S. Const.; Article 1, Section 10, Iowa Const., Iowa Code Section 815.10.   This provision of counsel is not merely a perfunctory process, but instead requires the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). In fact, counsel must subject the state’s case to meaningful adversarial testing or the defendant has suffered constructive denial of counsel. U.S. v. Cronic, 466 U.S. 648 (1984).
 Further, although not directly addressed by the United States Supreme Court, various Courts across the country have found that low or non-existent compensation for court appointed counsel results in the denial of the constitutional right to counsel. In fact, various courts have characterized this claim as the denial of the effective assistance of counsel.  The remedies for this situation have varied but include mandated additional compensation , threat of dismissal of charges , reversal of convictions , and the halting of prosecution until payment becomes available .
 In State v. Citizen, the Louisiana Supreme Court reviewed indigent defense funding in a consolidated case setting 898 So.2d 325 (L.A. 2005). At issue was the constitutionality of the funding mechanism for the delivery of the assistance of counsel to indigent criminal defendants. The Louisiana Court recognized that the legislature provided a mechanism of delivery of such services through a state indigent defense board, which divided certain responsibilities into separate indigent defense boards based upon judicial districts. Citizen, at 327.  However, the Court found the legislature failed to provide adequate appropriations to support these services. Id.  The Louisiana Court found that the trial court lacked authority to order that funds be appropriated from other sources. However, the Court found that “[i]mplicit in these defendants’ constitutional right to assistance of counsel is the State’s inability to proceed with their prosecution until it provides adequate funds for their defense.” Citizen, at 338. The Court continued to hold that once a lack of funding was identified, a defendant in Louisiana could file a motion to halt the prosecution until funds were identified. Id., at 339. Finally, the Court empowered the trial court to halt such prosecutions or take other measures which protect the constitutional and statutory rights to the assistance of counsel provided to an indigent criminal defendant. Id., at 339.

 This is consistent with a decision from the United States Court of Appeals for the Seventh Circuit. In Walberg v. Israel, the Seventh Circuit reversed a conviction because the defendant, convicted and sentenced to 28 years for burglary, was denied the assistance of counsel. 77 F.2d 1071 (7th Cir. 1985).  In Walberg, a habeas claim was brought in federal court following the denial of relief in state court.  The claimant was represented at the trial level by court appointed counsel whose fees were threatened by the trial judge. Walberg, at 1075 (Judge made a “thinly veiled threat not to approve [attorney’s] fee request at the end of trial.”)  In granting relief, the Court noted that normally an ineffective assistance of counsel claim requires a demonstration of prejudice. Id., at 1075.  However, Circuit Judge Posner noted that such a burden is lifted when “the state is not a passive spectator of an inept defense, but a cause of the inept defense.” Id., at 1076. The opinion noted that the Walberg situation involved a conflict of interest between the financial interest of the trial counsel in getting paid and the legitimate defense interest of the client/defendant in obtaining an acquittal. Id., at 1075.

 In fact, the Walberg Court noted that the conflict of interest the threat of non-payment created between counsel and the client was “too serious to be excused.” Walberg at 1075. The court analogized the conflict created in Walberg to other conflict cases such as Holloway v. Arkansas, 435 U.S. 475 (1978). Even though Holloway involved conflicts arising from multiple client representation, Circuit Judge Posner found that “whether or not this case fits the precise mold of the Holloway case it involves the same policy, one of protecting defendants against gratuitous interference by the judge with their efforts to defend themselves.” Wallberg, at 1076.
Comparing this case to the denial of counsel discussions in U.S. v. Cronic, 446 U.S. 648 (1984), the Seventh Circuit reversed the conviction by stating that no matter how guilty or how unworthy a member of the community the defendant was, he deserved “a better procedure” than that provided in this case before he should be” shipped off to prison for many years.” Walberg, at 1078.

 In the case at bar, as mentioned above and as will be demonstrated with factual support provided at the hearing on this motion, undersigned counsel now suffers a conflict of interest in his representation of Mr. Doe. This conflict is a realization of the tension between Doe’s need for vigorous representation involving potentially hundreds of hours of work and counsel’s financial interest in maintaining a solvent solo practice. The current situation of certain non-payment of attorney fees guarantees that counsel will be deprived of any payment for his services, will foot the bill for his office overhead, and will be forced to forego other profitable compensation.

 Therefore, Mr. Doe moves this Court for an Order allowing undersigned counsel to withdraw, or halting the prosecution in this matter until funds are available to provide for the effective assistance of counsel.  In the event the prosecution is halted, Defendant further moves for an order releasing him on his own recognizance, pending resumption of the prosecution after appropriation of indigent funds by the Iowa legislature.

     George B. Jones–Iowa Bar #17551

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About O.Kay Henderson

O. Kay Henderson is the news director of Radio Iowa.