Massachusetts

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At a Glance (as of 2013)

Percentage of state funding: 100%
Percentage of local funding: 0%
Percentage of alternative funding: 0%
State commission: yes
Branch of government: judicial

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Structure & Funding of Indigent Defense Services

The Committee for Public Counsel Services (CPCS) is a judicial branch agency overseeing the delivery of indigent defense services in all courts across the state of Massachusetts. CPCS is a board of 15 members, appointed by diverse authorities to ensure that no one branch of government can exert disproportionate influence over the delivery of right to counsel services: Governor (2 appointees); President of the Senate (2); Speaker of the House of Representatives (2); and, the Supreme Court Justices (9 – one public defender, one private bar advocate, one criminal appellate attorney, one with public administration/finance experience, and one current or former law school dean or faculty member). The board appoints CPCS’s chief counsel to run the agency from its central office in Boston.  Traditionally, since its founding in 1983, CPCS has employed the assigned counsel model to provide the bulk of its representational needs, with public defender offices handling only the most serious cases in the more urban areas of the state.

The delivery of direct services at the trial level is divided between two divisions, the Public Defender Division and the Private Counsel Division, each with a deputy chief counsel at its head. The deputy chief counsel for the Public Defender Division and the deputy chief counsel for the Private Counsel Division sit as equals on the agency’s executive team, and ethical screens maintain confidentiality of direct services between one division and the other and between each division and the central office. While the proportion of services provided by full-time employee attorneys has increased in recent years, the method by which the panel of private bar attorneys is administered and supervised remains the same.

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More than 2,000 private attorneys handle direct services on behalf of CPCS statewide. (Some years it is even larger. In FY2010, there were 3,026 attorneys on the roster.) Of the 2,000 attorneys participating in the statewide panel, more than 600 are certified to handle cases in Superior Court (more serious cases which carry potential sentences exceeding 2.5 years in jail). Of those certified for Superior Court work, 150 attorneys are certified even further still to handle murder cases. And as implied, the certification requirements increase with each level of court and case type.

But while the minimum standards for certification are promulgated at the state level, the initial screening of attorney applicants is handled locally. CPCS maintains annual contracts with non-profit bar advocate programs in each county. Those bar advocate programs in turn select a volunteer board to review attorney applications using CPCS’ minimum statewide qualification standards. (The composition of the local volunteer boards is also determined according to statewide standards promulgated by CPCS.)

To further ensure that all representation is provided locally, the county bar programs are responsible for the actual assignment of cases to individual attorneys. Private attorneys accepting public case-assignments agree to abide by CPCS’ “Performance Guidelines Governing Representation of Indigents in Criminal Cases,” but as with most everything else in the Massachusetts assigned counsel program, the direct review of ongoing attorney performance is also handled locally. Each county bar program maintains contracts with private attorneys who handle no cases, and instead act solely as supervisors for other private attorneys handling direct case-assignments.

There is no minimum level of experience required for attorneys in order to apply to handle misdemeanors and concurrent felonies in District Court (the lowest level of qualification). Instead, selection is based on merit and by interviews with the local volunteer board. Attorneys selected must then complete a 7-day training program (or apply for a waiver), which involves lectures each day, along with small group sessions targeting skills training (client interviews, ethics, direct/cross, immigration consequences, etc.).

Attorneys seeking approval for Superior Court work are required to have handled a minimum of six criminal jury trials as lead counsel within the past five years. A state blue ribbon panel of “top notch” attorneys then reviews their applications. Finally, each attorney must complete 8 hours of mandatory CLE, with CPCS pre-approving specific sessions. Certain attorneys may also need additional training, which is determined by the attorneys and the private bar supervisors. Certification to handle murder cases requires a minimum of 10 jury trials, of which five must be felonies carrying a potential of life imprisonment, within the past five years.

Statutory Authority

Mass. Gen. Laws Ann. Ch. 211D § 1 through 16

Source of data: original research conducted by Sixth Amendment Center staff.