Spring 2010-#2. Response to the Bailey Decision.

Authorby Charles S. Martin, Esq.

Vermont Bar Journal


Spring 2010-#2.

Response to the Bailey Decision

THE VERMONT BAR JOURNALVolume 36, No.1Spring 2010Response to the Bailey Decisionby Charles S. Martin, Esq.A majority of the justices of the Vermont Supreme Court allowed Attorney Allison Fulcher to withdraw from the representation of Kenneth Bailey in an appeal from the denial of his petition for post-conviction relief after it was dismissed in the superior court in proceedings where Mr. Bailey represented himself.(fn1) Two justices dissented from the Court's majority decision. The purpose of this article is to respond to the points made by the dissenters, who were suspicious of the internal procedures that Attorney Fulcher was required to follow in order to move for leave to withdraw from the representation of Mr. Bailey.(fn2)

From the dismissal of his post-conviction relief petition, Mr. Bailey filed a pro se Notice of Appeal on November 15, 2007.(fn3) He also requested that an attorney be appointed to represent him at state expense in his appeal to the Supreme Court. Attorney Fulcher was appointed by the superior court to represent Mr. Bailey on January 14, 2008.(fn4)

Pursuant to V.R.A.P. 3 and 10, Attorney Fulcher filed a docketing statement(fn5) and transcript order(fn6) for a record of the proceedings in the superior court on January 31, 2008. The Supreme Court notified Attorney Fulcher that the transcript of the superior court proceeding was completed on April 10, 2008,(fn7) resulting in the filing of Mr. Bailey's printed case(fn8) and brief(fn9) being due in thirty days from that date,(fn10) being May 8, 2008.

Attorney Fulcher is one of two attorneys who represent all individuals at state expense before the Supreme Court who cannot be represented by public defenders because of conflict of interest. Her workload average during the pendency of Mr. Bailey's appeal was just over forty-six pending cases,(fn11) requiring her to file requests for an enlargement of time to file Mr. Bailey's printed case and brief as those filings in the appeals of other such clients were already due during that time frame. Obviously she could not review the record of Mr. Bailey's appeal, complete her research, and prepare his printed case and brief within the thirty-day time from the notification of completion of the record. Because of her workload, she first filed a stipulation agreed to by the State for a thirty-day enlargement of time for filing those documents(fn12) for thirty days to June 8th, then filed a motion for another sixty-day enlargement of time,(fn13) which was granted by the Supreme Court. The stipulation and motion for extension of time allowed her to postpone work on Mr. Bailey's appeal until the cases that required filings to be done within that 120-day period between the completion of the record on appeal and August 8, 2008.

On August 5, 2008, Attorney Fulcher filed a motion for leave to withdraw from the representation of Mr. Bailey,(fn14) citing both the Rules of Professional Responsibility prohibiting participation in frivolous litigation and requiring candor towards the tribunal before which the attorney is litigating,(fn15) and 13 V.S.A. § 5233(a)(3),(fn16) enacted in the legislature's 2003 adjourned session. However, as with any other attorney who represents a client at state expense paid by the Office of the Defender General, before Attorney Fulcher may be permitted to seek leave to withdraw, a procedure established by the Defender General is to be followed to assure a thorough review of the merits of a post-conviction proceeding.

In the event that a post-conviction relief petition is filed by an attorney for a client, the determination that the proceeding is not frivolous has already been made by an attorney and no review procedure is necessary. Therefore, the review process is limited to those petitions that are filed pro se by the prisoner who is seeking release from custody. The first step in the review process consists of the attorney who is assigned to represent the pro se litigant thoroughly reviewing the case and if the case is thought to be frivolous, writing a letter detailing the reasons why the case is deemed frivolous to the intermediate reviewing attorney.

The overwhelming majority of pro se post-conviction relief petitions allege ineffective assistance of counsel. Because of obvious conflicts within the public defender...

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