Gideon Alert: NJ Gov’s dismissal of state public defender sparks debate over independence

BY Jon Mosher on Friday, March 4, 2011 at 1:00 PM

On March 3, the Newark Star-Ledger published an editorial on the New Jersey governor’s recent decision to remove the current chief public defender, Yvonne Smith Segars, and nominate a new candidate for the state senate’s approval.  New Jersey has a statewide, state-funded indigent defense system that provides direct services primarily through regional staffed public defender offices.  The state’s chief public defender, who oversees all right to counsel services in the state, is appointed by the governor with approval of the senate.

Governor Christie’s decision has stirred up a good bit of animosity among stakeholders within the state (the Star-Ledger’s editorial sums up the various points of view), divided largely along partisan lines.  Senate Democrats have responded to the governor’s decision by delaying approval of the governor’s nominee for state public defender.  But, as the Star-Ledger is correct to point out, these partisan battles are a red herring: “… the more important issue here is the independence of the office.”

The state of New Jersey is not alone in its current struggle to provide right to counsel services in a manner free from political interference.  Whenever a state public defender is a direct gubernatorial appointee, or is appointed by an oversight board that lacks sufficiently diverse appointing authorities, the public defense system is mired in gubernatorial politics.  Recent events from other states provide examples of this dynamic.

In August 2009, Maryland’s then-chief public defender was fired on a 2-1 vote of the three-person public defender oversight board.  The three members of the board were all direct appointees of the Maryland governor.  The chief’s firing resulted from her disagreement with that gubernatorial board about the best ways to provide services to indigent clients.  The issue in Maryland then, as in New Jersey now, was not whether replacing the sitting chief defender was justified.  Instead, national advocates and state legislators focused on the need to create a public defense board that meets national standards and provides insulation from politics.

Just this past month, in February 2011, New Mexico’s governor removed the state’s chief public defender.  Much like New Jersey, the state of New Mexico has a statewide, state-funded indigent defense system that provides services through a combination of staffed public defender offices and contract attorneys.  As we discussed in our Gideon Alert on New Mexico’s current situation: “The dismissal of the public defender is expected with the election of a new governor because New Mexico’s chief public defender is appointed by and serves at the pleasure of the governor, rather than through a non-partisan public defense commission as required by national standards including ABA Principle 1.”

The very first of the ABA Ten Principles calls for the establishment of an independent right to counsel oversight board, with a sufficient number of members appointed by diverse authorities so that no single official or political party has unchecked power over the indigent defense function.  See Guideline 2.10 of the National Study Commission’s Guideline for Legal Defense Services in the United States (1976).   Following national standards, this independent board is responsible for choosing the state public defender (NSC Guideline 2.11), based on a “non-partisan, merit procedure” to ensure that the most qualified candidate is appointed (NSC Guideline 2.12).   And once chosen, the chief public defender serves for a specific term of years, during which she is not removed from office except for good cause – in other words, the chief public defender is never removed simply because the prevailing political party in the state has changed.  As the United States Supreme Court observed over thirty years ago, in Branti v. Finkel, the employment of a “public defender cannot properly be conditioned upon his allegiance to the political party in control ….  His principal responsibility is to serve the undivided interests of his client.  Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the government and to oppose it in adversary litigation.”

The Star-Ledger editorial correctly identifies the New Jersey defender system’s current lack of independence as the true problem that must be addressed.  They propose moving the public defense system from the executive branch of government to the judicial branch, arguing: “This episode shows how awkward it is to place this office under the executive branch.  It should be placed in the Judiciary branch instead, to avoid just this kind of conflict.”  Their focus on avoiding political interference is laudable, yet the dangers of judicial interference with a public defense system are equally great.  In Powell v. Alabama, the infamous Scottsboro Boys case from the 1930s, the Supreme Court queried: “But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused?  He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly.  He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.”   This is why ABA Principle 1 calls for independence from both the political and judicial branches: “The public defense function should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel.” 

The public defense system’s independence can only be preserved by insulating the right to counsel delivery system through the creation of an oversight board that meets national standards.  So long as the independence of the oversight board is ensured, national standards are silent on the appropriateness of housing right to counsel services in either the executive or judicial branch of government.  And nationally there is no trend among states; rather states are split relatively evenly between placing indigent defense services in the executive or judicial branch of government.  Among the thirty-one jurisdictions that deliver defense services through a statewide system (instead of county-by-county), 17 are placed in the executive branch and 14 are placed in the judicial branch.

New Jersey stakeholders should take solace knowing that the problem of public defense independence can be easily solved.  On May 4, 2010, Maryland enacted legislation increasing the independence of its state public defender agency.  As we wrote in our Gideon Alert on that effort: “The legislation expands the Public Defender Board from three members all appointed by the Governor to a thirteen-member board selected by diverse authorities.  No sitting judges, prosecutors, or law enforcement employees may serve on the public defender board.  Following prevailing national standards, SB 97 requires that the chief public defender be appointed for a term of six years and only be terminated for just cause.  The legislation was passed on a near unanimous, bipartisan basis (Senate: 45-0; House: 137-4).”

New Jersey’s elected officials should follow Maryland’s example and protect their state public defender system from both inappropriate political and judicial interference.  We are encouraged by a March 3 report from the New Jersey Newsroom that a resolution has been introduced in the state Senate aiming to “make the [public defender] office an independent entity in but not of the state court system.”  Though we do not have access to the full language of this new proposal, its description – “SCR148 Provides for appointment of the Public Defender by a new Public Defender Services Commission” – is encouraging.  The Newsroom report suggests the proposal is based upon the Connecticut public defender system, which has an independent oversight board organized in accordance with national standards.

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