The Office of Indigent Defense Services (IDS) is responsible for providing legal representation for indigent defendants and respondents in North Carolina. It is a small agency with a big job, spanning representation in criminal prosecutions, parental rights proceedings, involuntary commitment cases, and other cases affecting important rights. This blog post introduces Whitney Fairbanks, the new assistant director and general counsel of IDS. That position is often the point of contact for lawyers, court officials, and others involved with indigent defense. The following is from an interview I conducted of Whitney last week. Continue reading
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In 2015, the Office of Indigent Defense Services (IDS) asked the School of Government to conduct an online survey of how superior and district court judges view IDS’s administration of indigent defense in North Carolina. Last week, the School issued its report of the survey results, Trial Judges’ Perceptions of North Carolina’s Office of Indigent Defense Services: A Report on Survey Results (March 2016) (referred to below as the Report). The verdict? Judges have a positive view of IDS’s performance, overall and in several key areas, but the results include a few warning signs for indigent defense. Continue reading →
I thought I’d take a few minutes and jot down some questions and answers about the new fine-only punishment scheme for Class 3 misdemeanors for many defendants (enacted as part of the 2013 Appropriations Act). Several hours later—after thinking about the different permutations, reading several cases, talking with patient colleagues, and pondering further—I came up with a list of 33 questions and answers on Appointment of Counsel for Class 3 Misdemeanors. The subject poses both constitutional and practical questions.
Beginning with offenses committed on or after December 1, 2013, the basic rule is that a court may not impose a punishment other than a fine for a Class 3 misdemeanor if the defendant has three or fewer convictions and no other statute authorizes a greater punishment. See G.S. 15A-1340.23(d). The impact of this rule is that defendants who cannot receive more than a fine are generally not entitled to appointed counsel because, under the Sixth Amendment, the right to counsel in misdemeanor cases applies only if the defendant receives a sentence of active or suspended imprisonment.
This aspect of Sixth Amendment jurisprudence has always been awkward to apply because it requires that courts work backward from the sentence to be imposed at the end of the case in determining the defendant’s entitlement to counsel at the outset of the case. (For felonies, an indigent defendant always has a right to appointed counsel.) The new punishment scheme for Class 3 misdemeanors poses new questions, such as:
- What dispositions are permissible for “fine-only” Class 3 misdemeanors? Are costs permissible? A deferred prosecution? A sentence of time served?
- When does the court have to determine the defendant’s prior record for purposes of appointing counsel?
- What of a defendant charged with a Class 3 misdemeanor who has been arrested and cannot make bond? Does he or she have a right to counsel although not subject to imprisonment if convicted?
- Do the collateral consequences of a conviction have a bearing on the analysis?
People undoubtedly will have more questions as well as different views about the impact of the change. As always, feel free to weigh in with your questions and comments.
According to this recent article in the ABA Journal, criminal defense lawyers “[i]ncreasingly . . . are asking their clients to wear glasses during jury trials,” believing that juries will be more likely to acquit bespectacled defendants, who they may view as less threatening. One prosecutor characterized the strategy as an “unspoken nerd defense.” The article links to this 2008 study, which concluded that the wearing of “[e]yeglasses had an indirect effect on verdict by increasing [jurors’] ratings of [the defendant’s] intelligence, which decreased guilty verdicts.” This got me wondering: if an indigent defendant can’t afford non-prescription eyeglasses – apparently available for as little as $8 on Amazon – is he entitled to the same at the state’s expense?
Maybe that seems like a frivolous question, and I admit to being a little tongue-in-cheek about it. But it is closely related to a some non-frivolous questions. For example, if an indigent defendant does not own dress clothes, must the state provide them? In Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989), the court held that “the state is under an affirmative duty to provide civilian clothing in a timely fashion and, if no such clothing is in its possession, to provide reasonable funds for the purchase of acceptable attire.” The decision isn’t quite on point, though, because it was grounded in a defendant’s right not to be forced to go to trial in prison garb – in that case, the police seized, then lost, all the clothing that the defendant owned, leaving him with no civilian clothing at all – and the court expressly made “no judgment about what constitutes suitable clothing.” In Johnson v. State, 2009 WL 3517992 (Ind. Ct. App. Oct. 8, 2009), the court noted with approval that the trial judge had approved a defense request to “purchase a suit, shirt, and tie from Goodwill,” apparently at state expense, but the appellate court decision didn’t focus on the existence or the extent of the right to dress clothing.
Another related issue is what to do with a defendant who is covered in offensive tattoos. The New York Times has this story about a murder defendant with, among other things, a “large swastika tattooed on his neck.” Some might argue that a person who chooses to get such a tattoo ought to bear the consequences of his choice, but the trial judge agreed to pay a cosmetologist $125 per day to cover the tattoos.
I’m not aware of any North Carolina law on these issues. I know that defense lawyers often pay out-of-pocket for dress clothes for clients; I did that myself, more than once. Perhaps such an expense would be reimbursable under, for example, section III.G of the Office of Indigent Defense Services’ fee and expense policy for non-capital trials. That section is a catchall provision for “other expenses,” beyond normal overhead, that may be reimbursed if necessary and reasonable. I don’t know whether IDS would approve, say, $25 for a Goodwill suit – if you work for IDS, or if you’re a defense lawyer who has requested reimbursement for court clothing, please post a comment. I doubt that IDS would approve $8 for non-prescription eyeglasses, but maybe if the “nerd defense” catches on . . . [Update: The powers that be at IDS have informed me that there is “no way” that IDS would pay for non-prescription glasses, but that clothing requests are considered on a case-by-case basis and sometimes approved if very modest.]
The Office of Indigent Defense Services (IDS) is studying data related to the disposition of seventeen types of misdemeanor charges during the 2009 fiscal year to determine whether decriminalization of these offenses might be an appropriate way to reduce the cost to the State of providing appointed counsel. Section 15.17 of S.L. 2009-451 directed IDS to consult with other court system actors regarding means of cutting costs, including the possibility of decriminalizing minor misdemeanor offenses for which jail sentences are rarely or never imposed. (The bill also directs IDS to study ways to improve the screening and processing of potentially capital cases, but this post focuses on the first directive.) The following types of charges are to be studied.
- G.S. 14-168.4: Failure to return property rented with purchase option
- G.S. 14-107(d)(1): Simple worthless check
- G.S. 20-34: Allow unlicensed person to drive
- G.S. 20-111(1): Driving or allowing another to drive an unregistered vehicle
- G.S. 20-28(a): Driving while license revoked (Not based on DWI)
- G.S. 20-111(2): Expired registration card/tag
- G.S. 20-7(e): Failure to comply with license restriction
- G.S. 20-7.1: Failure to notify DMV of an address change
- G.S. 20-57(c): Failure to sign registration card
- G.S. 20-111(2): Fictitious/canceled/revoked registration card/tag
- G.S. 20-7(a): License not in possession
- G.S. 20-7(a): No operator’s license
- G.S. 20-57(c): No registration card
- G.S. 20-313(a): Operate vehicle no insurance
- G.S. 20-141(j1): Speeding more than 15 mph over limit or over 80 mph
- G.S. 20-127(d): Window tinting violation
- G.S. 113-270.1B(A): Fishing without a license
Two of these offenses, driving while license revoked and operating a vehicle with no insurance, are Class 1 misdemeanors, punishable by up to 120 days imprisonment. The rest are Class 2 misdemeanors, with the exception of a first offense of fishing without a license, which is a Class 3 misdemeanor.
Ten of the above offenses are included on the traffic waiver list, and the fishing offense appears on the hunting, fishing, and boating waiver list. A defendant may resolve a waiver offense without having to appear in court by paying court costs and a designated penalty. Offenses for which court appearances may be waived generally are considered less serious than offenses for which a court appearance is required.
A court appearance currently is required for the following offenses to be studied:
- failure to return rental property,
- simple worthless check,
- driving while license revoked,
- display or possession of a fictitious registration card or tag,
- operating a vehicle without insurance, and
- speeding more than 80 miles per hour or more than 15 mph over the speed limit while driving more than 55 mph.
Of course, decriminalizing these offenses does not mean legalizing the conduct they currently regulate. Instead, any proposal that may result from the study presumably would recommend designating certain offenses as infractions, defined under G.S. 14-3.1 as noncriminal violations of the law. Because there is no right to counsel at state expense to defend against an infraction, decriminalization presumably would reduce IDS’s costs and result in a savings to the State.
IDS plans to circulate the study results among court system actors to determine whether there is consensus about decriminalizing any of the analyzed offenses.
Editor’s note: Shea provided the document pasted below, in which IDS describes the study