RES 288 Draft 01 2010-2012 - Laserfiche WebLink

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WHEREAS, there are a number of difficulties when it comes to deciding which entity/entities should ultimately verify criminal defendants' applications for court-appointed counsel. While government entities certainly have more specialized knowledge, a conflict of interest is almost unavoidable. If prosecutors screen the cases, they can threaten to deny a criminal defendant counsel, unless he pleads guilty. If the public defenders office verifies the indigency of potential cases, they run the risk of allowing their personal interests to affect their decisions as to accept or reject a criminal defendant. If the presiding judiciary is responsible for verifying indigency, it may violate the American Bar Association Model Code of Judicial Conduct. In 2008, the Nevada Supreme Court developed the applicable rule stating that a "determination of indigency should be performed by an independent board, agency, or committee, or by judges not directly involved in the case"; and WHEREAS, economic verification of potential indigents costs money so a number of jurisdictions charge an application fee for every person who is interested in receiving a public defender, and if the criminal defendant cannot pay the fee in advance, the amount is added to the judgment and sentence if the criminal defendant is convicted; and WHEREAS, a number of states use the "partially indigent" definition to distinguish those who are truly indigent from those who can contribute limitedly to the cost of their counsel. This label would be appropriate when criminal defendants are deemed partially able to pay for their own counsel; and WHEREAS, some criminal defendants who should not have a public defender falsely obtain a public defender and then request a jury trial which costs the State of Hawai`i thousands if not millions of dollars; and WHEREAS, because the State of Hawai`i has limited resources, it is essential that we make certain that funding is appropriately disbursed. The technique that is currently in place to evaluate the need for and assign court-appointed counsel is inefficient and outdated; furthermore, it discourages both consistency and fairness. These changes will create a far more defined and regulated system, and will streamline the process of determining indigency, ensuring that the constitutional rights of indigent people are met equitably; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the Hawaii State Association of Counties include in its 2013 Legislative Package, a draft bill to amend Hawai`i Revised Statutes, section 802-4 labeled "Exhibit A" and the justification Sheet for this action labeled "Exhibit B." 3