State v. A.N.J.
ANJ (12 years old) pleaded guilty to child molestation. Almost immediately, and after learning the consequences of a guilty plea in this situation, he tried to withdraw his plea. This case, essentially, involves an admonishment of the Public Defender system.
ANJ was accused of molesting a 5-year-old. The trial court appointed a public defender. Under the contract, the defender was paid a flat rate of $162, but expert fees had to be paid for by the defender. I don’t know how often you hire experts, but it is not uncommon for the retainer to be $4,000. Given the number of cases a public defender can handle, you can see the issue here. In fact, “Under recent revisions of the rules governing attorneys’ professional conduct, it is now unethical for an attorney to sign a public defender contract to deliver public defense if the contract requires the attorney to pay for conflict counsel, expert witness, or investigative costs out of a lump fee. RPC 1.8(m).”
In a case of such import, the overloaded PD didn’t do an investigation, met with the client only briefly, and never contacted the witnesses (only trying once). There were no requests for discovery and no motions filed.
When the state offered a reduced charge under SSODA, the PD only briefly explained the implications of the plea, saying he would have to register and couldn’t own a firearm. He told the family that the charge could be removed at 18 or 21 (sex offenses don’t roll like that, they stick):
[The Public Defender] also initially submitted a declaration in support of A.N.J.’s motion. He acknowledged he had done no investigation, that he had not read the plea agreement to A.N.J. or had him do so, and that he had told A.N.J.’s parents that he “believed” the convictions could be removed from A.N.J.’s record when he turned 18 or 21.
The court reversed on the misinformation to the client, which is ineffective assistance, as well as the failure to inform ANJ of the elements (specifically, sexual gratification, which, given the age of all involved, could very well be missing).
Finally, of particular note on the ineffective assistance:
However, we hold that if a public defender contract requires the defender to pay investigative, expert, and conflict counsel fees out of the defender’s fee, the contract may be considered as evidence of ineffective assistance of counsel. We further hold that depending on the nature of the charge and the issues presented, effective assistance of counsel may require the assistance of expert witnesses to test and evaluate the evidence against a defendant.
