Everyone is entitled to an attorney when accused of a crime. It says so in the Sixth Amendment. If you can’t afford one, the state will appoint one for you.
Now, in Colorado, a public defender can be swapped out with a warm body on the eve of your trial if the judge says so. That’s the result of a recent ruling by the Colorado Supreme Court, which essentially says, “beggars can’t be choosers.”
OK, I get it. It’s America: If you must be assigned a public defender, you get what you get and you could throw a fit, but it won’t do any good. Still, once you start planning your defense with your appointed attorney – and most of them know the court system inside and out – you should have the right to keep that lawyer. To me, that’s part of what is meant by “effective counsel,” which is what the U.S. Supreme Court says is required under the Sixth Amendment.
The recent Colorado Supreme Court ruling comes in a domestic violence case in which Robert James Rainey was convicted of second-degree kidnapping and criminal mischief. His public defender had only the weekend to prepare for the trial. That’s because his initial public defender had a conflict and the judge refused to reschedule the trial.
The judge said her court calendar was packed and any public defender could handle it. “It’s not a case that involved anything technical,” she said. “It’s just straightforward witnesses and a victim who doesn’t want to cooperate.”
She said she “felt terrible” for Rainey, but apparently not as sorry as she felt for her clerk and the DA when she granted them four trial delays previously: when the courthouse was damaged in a storm, when not enough jurors were available, and when prosecution witnesses didn’t show up.
So, after a weekend cram session, the trial was held and a jury convicted Rainey of two of the nine charges against him.
Rainey appealed, saying his Sixth Amendment rights had been violated. The Colorado Court of Appeals agreed and ordered the trial judge to hold a hearing to determine the impact of her refusal to reschedule the trial. It could have resulted in a new trial for Rainey.
But the state Supreme Court overruled the Appeals Court. “The right to continued representation by a particular attorney flows from the right to choose that attorney, which does not apply when counsel is appointed.” In other words, you get AN attorney, but don’t get too attached.
One justice dissented, saying there is nothing in the Constitution or previous court rulings to support the majority opinion that you get to keep your lawyer only if you got to choose him or her in the first place. “In my view, the attorney-client relationship is entitled to far more respect than the majority’s conclusion affords,” Justice Richard L. Gabriel wrote. “The majority enshrines into constitutional law the notion that people of means have a right to the continuity of counsel but indigent defendants do not.”
So, a defendant who scrapes together the money needed to pay their own lawyer can’t get the shaft like a poorer defendant can. That’s cold comfort.
Sources:
(Featured image by Jeffrey Beal, CC)
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Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Call him today at 720.819.7317.