Court-appointed Attorneys: Old Problems and New Solutions
| Publication year | 1990 |
| Pages | 437 |
| Citation | Vol. 03 No. 1990 Pg. 437 |
1990, March, Pg. 437. Court-Appointed Attorneys: Old Problems and New Solutions
On October 27, 1989, the Chief Justice of the Colorado Supreme Court issued two directives relating to the appointment of counsel for indigent persons who have a constitutional or statutory right to counsel [published in 19 The Colorado Lawyer 85 (Jan. 1990)]. These directives may change substantially the way in which counsel are appointed in these cases and may affect all lawyers who practice in Colorado.
The need for court-appointed counsel often arises in criminal cases where the Office of Public Defender has a conflict of interest. The Criminal Law Section of the Colorado Bar Association ("CBA"), along with other interested parties, currently is trying to determine the best way to implement these changes. This article gives a brief history of the right to counsel in criminal cases, outlines the current situation and the changes announced in the new directives and offers some suggestions for implementation.
A 1932 case, Powell v. Alabama,(fn1) stated the origin of court-appointed counsel in this way:
Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions. . . . At the same time parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel.
The English rule of only partial right to legal counsel came under fire in virtually all the American colonies(fn2) and eventually was nullified by the Sixth Amendment to the U.S. Constitution. By 1836, England, too, recognized the right to counsel in all criminal cases.(fn3)
However, until relatively recent times, the right to counsel benefited only those who could afford to hire their own attorneys. In 1938, the U.S. Supreme Court established the right of indigent criminal defendants in federal cases to have the assistance of counsel appointed at state expense.(fn4) In 1963, Gideon v. Wainwright(fn5) extended the right to court-appointed counsel to defendants in state courts.
While some state courts and legislatures had established a right to counsel before Gideon, Colorado was not among them. In the 1949 case of Kelley v. People,(fn6) the Colorado Supreme Court held that the Sixth Amendment right to counsel did not apply to state prosecutions. However, after Gideon, the court amended the Colorado Rules of Criminal Procedure ("Crim.P.") Rule 44 so that, by the end of 1963, Colorado trial courts were required to appoint counsel to represent indigent criminal defendants in felony cases and could appoint counsel in misdemeanor cases.
In a 1965 case, Allen v. People,(fn7) the court recognized that Gideon had changed the rules. The Allen decision noted that the holding in Kelley had been nullified by the amended Crim.P. Rule 44. It also stated that "the right of a person accused of a crime to be represented by an attorney can no longer be challenged."(fn8) It is now clearly recognized that the Sixth Amendment and Article II, § 16 of the Colorado Constitution provide that criminal defendants have the right to counsel regardless of their ability to pay.(fn9)
The requirement that all criminal defendants receive the benefit of counsel originally was fulfilled in Colorado by the appointment of private attorneys. As the demand for appointed counsel grew, some of the larger counties set up their own public defender offices. Finally, in 1970, the Colorado General Assembly established the Office of Public Defender. That Office now has twenty branches around the state, as well as an appellate division in Denver. The Office of Public Defender presently employs approximately 150 attorneys and 100 support staff throughout Colorado.
Despite the existence of the Office of Public Defender, there remains a need
for court-appointed attorneys any time the Public Defender has a conflict of interest in a specific case. Conflicts arise most frequently when two or more people are charged in connection with one criminal episode. The Public Defender generally can represent only one of the individuals and asks the court to appoint counsel for the remaining defendants. Other conflicts arise when the Public Defender...
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