Gideon Alert: Lawsuit challenges Colorado law refusing appointment of counsel until after clients meet with DA

BY David Carroll on Sunday, December 12, 2010 at 12:31 PM

Colorado is the only state in the country that statutorily requires indigent defendants in misdemeanor cases to consult with prosecutors about plea deals before they can receive their constitutional right to counsel.  Colo. Rev. Stat. § 16-7-301(4) states that, in misdemeanor cases, the “application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant.”  The prosecutor is statutorily obligated “to tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time.”

On December 9, 2010, the Denver Post reported that a new federal lawsuit has been filed challenging the constitutionality of the law.  The suit was filed by the Colorado Criminal Defense Bar and the Colorado Criminal Justice Reform Coalition -- a non-profit organization working to halt the exponential growth in the state prison population.  The National Association of Criminal Defense Lawyers is serving as litigation consultant and continues to shed light on this issue –- originally highlighted in their seminal report Minor Crimes, Massive Waste –- through public education and coalition-building.
The complaint relies extensively on two important United States Supreme Court decisions: Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008); and, Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 1486 (2010).  In Rothgery, the Court made clear that a defendant’s constitutional right to counsel attaches at “initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.”  Further, “[o]nce attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings.”  Padilla held that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel,” in part because of the need for counsel to advise clients of the broad array of potential collateral consequences that may result from a criminal conviction (e.g., immigration consequences; inability to join the military; loss of student loans; denial of housing, etc.).
Outside of this law, Colorado is a state whose indigent defense structure more readily meets the spirit of Gideon v. Wainwright.  In 1970, the Office of the State Public Defender was created, and an independent oversight commission was added nearly a decade later.  Conflict representation is provided by the Office of the Alternate Defense Counsel, an organized assigned counsel system overseen by a separate and independent nine-person commission that precludes sitting judges, prosecutors and law enforcement from serving.
Statutes require the state public defender “at all times” to “conduct the office in accordance with the Colorado rules of professional conduct and with the American Bar Association standards relating to the administration of criminal justice, the defense function.”  Interestingly, the ABA Criminal Justice Standards for the Prosecution Function, Standard 3-4.1(b) states that a prosecutor should never engage in a plea discussion with an accused unless her defense counsel has approved the discussion or the client has “properly waived counsel.”  Since plea negotiations in Colorado misdemeanor courts occur before defendants can even be considered for counsel, a proper waiver is impossible.
The statute in question also appears to require prosecutors to violate the ethical rules imposed by the Colorado Rules of Professional Conduct, the violation of which can result in loss of their bar card.  For example, Rule 3.8 (b)(c)  (“Special Responsibilities of a Prosecutor”) states that a prosecutor in a criminal case shall “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel” and shall “not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.”  And, Rule 4.3 (“Dealing with an unrepresented person”) makes clear that any lawyer, including prosecutors, “shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” 
In an attempt to address this issue without resorting to litigation, the Colorado State Court Administrator and the State Public Defender, on July 1, 2008, formally requested from the state Attorney General an opinion on the constitutionality of Colo. Rev. Stat. § 16-7-301(4), given the then-recent Supreme Court holding in Rothgery.  The Attorney General refused to issue such an opinion, responding that the statute is “constitutionally defensible, should it be challenged.”
A Denver Post editorial on December 12, 2010 sees it differently.  Because the criminal justice system is “tilted toward quickie plea bargains for poor people accused of crimes” and is a “system that could come back to haunt the state if defendants seeking damages file lawsuits claiming their constitutional rights have been violated,” the Post determined that it doesn’t “even look like a close call” as to the state being able to win the lawsuit.  “[T]he state cannot compromise constitutional rights in order to balance the budget,” concludes the Post, “[t]he cold hard truth is that justice doesn’t always come cheap.”