Will the Virgin Islands finally end the practice of conscripting non-qualified lawyers to represent the indigent accused?
Pleading the Sixth: Although the Virgin Islands has a territorial public defender office, trial court administrative rules historically authorized judges to conscript any attorney barred in the territory – divorce lawyers and real estate lawyers included – to provide representation to the indigent accused in conflict cases. The Virgin Islands Supreme Court ordered an end to that practice, but stayed enforcement to allow the lower court time to create a better appointment system. The stay deadline has come and gone, and no one is really sure if the newly devised conflict appointment system has Virgin Islands Supreme Court approval or not. It seems like a good time to remind our readership that the right to counsel is the law of the land in the U.S. territories, even if the entire Sixth Amendment is not.
Although some believe all lawyers have a professional obligation to the courts to provide representation without compensation when called on to do so, the problem is that not all lawyers have the skill set necessary to defend the criminally accused effectively. Just as you would not seek out a dermatologist to perform brain surgery – despite a dermatologist being a licensed doctor – defending a person charged with a crime requires a lawyer trained in criminal defense, as opposed to an attorney steeped in real estate or divorce law. “No one would expect a criminal defense lawyer to draft a sophisticated estate plan, advise an individual on an esoteric income tax issue, or advise a union on the requirements of federal labor law. Nor would one reasonably expect the converse to be true. But unfortunately, it is true. As the appointment system is now administered, an estate planning lawyer, a tax attorney, or a labor lawyer maybe called upon to defend a person accused of the most serious crimes.” This was the “empirical reality” in the Virgin Islands prior to 2016, as detailed in an amicus brief filed by the Virgin Islands Bar Association in a case before the Virgin Islands Supreme Court.
In 2014 and 2015, two attorneys were involuntarily appointed by Superior Court trial judges to represent indigent defendants at the trial court level of their criminal cases. The appointments were made in accordance with the long-standing practice of the Superior Court to appoint the next attorney in the alphabetical list of every active member of the Virgin Islands bar, and the attorney would have to provide representation without being compensated or face contempt charges for refusal. The two attorneys both appealed to the Virgin Islands Supreme Court, asking the Court to declare that the involuntary appointment process violated Virgin Islands statutory law (explained below).
On November 25, 2015, in In re Holcombe, the Virgin Islands Supreme Court vacated the lower court’s “practice of appointing private attorneys from a list of all members of the Virgin Islands Bar to serve involuntarily as criminal defense counsel.” However, the court stayed the order until March 1, 2016 to allow the Superior Court time to create a better conflict appointment system.
The Superior Court first proposed a new rule in which attorneys could either “volunteer” for criminal appointments or be conscripted to provide free civil legal services; a proposal that the Supreme Court found to be inconsistent with Virgin Island laws and with that court’s exclusive jurisdiction to regulate the bar, in addition to raising “very serious concerns under the Takings Clause of the United States Constitution.”
The Superior Court most recently promulgated a new court rule in February 2016, setting out a more structured system for the appointment of attorneys to represent the indigent in conflict cases, whereby private attorneys may apply to be on indigent criminal defense panels and be paid an hourly fee for their work.
But, the Virgin Islands Supreme Court has yet to weigh in with either approval or disapproval of the new rule, which, by the way, is rife with undue judicial interference, fails to establish qualifications for attorneys appointed to represent the indigent, and leaves open the possibility that individual attorneys can still be conscripted if a judge sees a compelling reason to do so in an individual case.
There is a lot to unpack here, so let’s review how the Virgin Islands got to this point.
The Sixth Amendment & the U.S. territories
Article IV, section 3, clause 2 of the U.S. Constitution, known as the Territorial Clause, gives Congress the power to “make all needful Rules and Regulations respecting the Territory or other Property” of the United States. The territory of the United States includes the 50 states and the District of Columbia that are incorporated into the United States and, today, a total of 14 areas over which the United States has sovereignty but that are not incorporated, though nine of those are predominantly uninhabited wild-life refuges or have only a few U.S. military personnel residing there. (The nine unincorporated and unpopulated areas are: in the Caribbean, Navassa Island; and in the Pacific: Baker Island, Howard Island, Kingman Reef, Jarvis Island, Johnston Atoll, Midway Island, Palmyra Island, and Wake Island.) The five significant unincorporated areas – we refer to them as territories – are American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands.
Each territory has its own unique relationship with the United States. The U.S. Constitution does not automatically apply in its entirety in the territories. Instead, the U.S. Constitution applies in the territories only to the extent that Congress enacts statutes saying that all or certain parts of it apply to a specific territory or where the courts have decided that a right protected by the U.S. Constitution is “fundamental.” (See Downes v. Bidwell, 182 U.S. 244, 278-83 (1901).)
The U.S. Supreme Court has not directly decided whether the Sixth Amendment right to counsel is among the fundamental rights that apply in the territories. In the absence of a direct federal constitutional right to counsel, acts of Congress and/or the local constitution and local statutes of an individual territory may expressly guarantee the right to counsel.
The Virgin Islands have not adopted a constitution. They are governed by the Organic Act of the Virgin Islands, as passed and amended by the U.S. Congress. 48 U.S.C. § 1561 of the Organic Act guarantees that “[i]n all criminal prosecutions the accused shall enjoy the right to be represented by counsel for his defense.”
Indigent defense in the Virgin Islands
The Virgin Islands legislature established the Office of the Territorial Public Defender (OTPD), which began operations in July of 1973, to represent indigent criminal defendants. Since 1979, a five-person Public Defender Administration Board oversees the hiring and firing of OTPD employees and promulgates office rules and policies. The board members are appointed by: the president of the Virgin Islands Bar Association (1 appointment); the governor (1); the president of the legislature (1); and the presiding judge of the Superior Court (2: one person from St. Thomas/St. John and one from St. Croix). The board appoints the chief public defender of the OTPD to a three-year term, terminable only for just cause. The OTPD is appointed to represent indigent defendants in felony cases and in criminal misdemeanor cases that carry the possibility of imprisonment.
The Virgin Islands legislature left it to the courts, though, to appoint attorneys for defendants with whom the OTPD has a conflict or where in the judgment of the court “the circumstances warrant it,” providing only that the Superior Court judges appoint counsel “from a panel of private attorneys maintained by the Superior Court” in “no more than 15 percent” of indigent criminal cases.
At that time in 1974, a U.S. District Court established by Congress had supervisory jurisdiction over local courts, including authority to make rules for all of the courts and to regulate the practice of law. The U.S. District Court rule 16 required every active member of the Virgin Island bar to accept appointments to represent indigent criminal defendants. It provided a list of all licensed attorneys to the Superior Court and directed the Superior Court judges to make appointments from it, “tak[ing] into consideration the nature and complexity of the case, and the experience of counsel.”
In 1984, Congress divested the District Court of its rulemaking authority over the local courts and of its exclusive authority over Virgin Islands attorneys. The Superior Court judges continued to follow U.S. District Court rule 16 until 1994, when the Superior Court adopted its own administrative rules. Superior Court rule 303(p) retained the earlier practice of conscripting all active members of the Virgin Islands bar, with judges selecting the next attorney alphabetically to represent an indigent defendant.
And that is where the practice stood until the legislature created the Virgin Islands Supreme Court, vesting it with authority over all the courts of the territory including rule-making authority and regulation of the practice of law. The Virgin Islands Supreme Court opened December 18, 2006, and it assumed jurisdiction over the Superior Court on January 29, 2007. In November 2007, the Supreme Court repealed Superior Court rule 303(p) along with others, and no rule governing the appointment of counsel in indigent criminal trial cases was adopted by the Supreme Court to replace it.
In the absence of any court rule giving judges direction about how to appoint attorneys to represent indigent defendants in conflict cases, from 2007 through 2016, the only requirement was the legislatively enacted statute that the Superior Court judges appoint counsel “from a panel of private attorneys maintained by the Superior Court” in “no more than 15 percent” of indigent criminal cases. The conscription practices continued out of precedent.
In the void, the presiding judge of the Superior Court sent a letter to all judges and lawyers in September of 2011, reminding them that all attorneys could be conscripted, adding in that “all attorneys, regardless of their background, have a responsibility to conduct research to familiarize themselves with applicable case law and strategies required for each defense,” and that “it is not an excuse that the case is not within the attorney’s area of practice or expertise.”
In re Holcombe & the aftermath
Attorneys who were involuntarily conscripted to represent indigent defendants in criminal cases regularly sought to be relieved of those appointments for a variety of reasons (e.g., practicing in a firm that already had a number of pro bono criminal appointments, living somewhere other than the Virgin Islands, etc.). For the most part, the Superior Court would remind the attorney of their responsibility to represent the indigent but allow them to withdraw and simply appoint another attorney. This could have extremely detrimental effects on indigent defendants, often resulting in their receiving representation in name only for many months as attorneys are sequentially appointed and then allowed to withdraw.
For example, in the Holcombe appointment, the defendant was charged “with numerous criminal offenses, including first-degree murder,” and the attorney was the fourth of five attorneys who were sequentially appointed to represent the defendant between August 2012 and May 2015. The first attorney was withdrawn after being elected as a judge. The second attorney was withdrawn because he was moving away from the Virgin Islands. The third attorney was withdrawn because his law firm had received three involuntary appointments within just a few months, two of which were first-degree murder cases. Holcombe was allowed to withdraw at least in part because of his appeal to the Virgin Islands Supreme Court, resulting in a fifth attorney being appointed to represent the defendant nearly three years after he was charged.
Similarly, in the King appointment, the defendant faced charges for “numerous crimes, including a violation of the Criminally Influenced and Corrupt Organizations Act, . . . embezzlement, and obtaining money by false pretenses,” and the attorney was the eighth to nominally represent the defendant between April 2014 and November 2015. The Office of the Territorial Public Defender was first appointed but then withdrawn when a private retained attorney enrolled. The private attorney was withdrawn when the defendant could no longer pay him. The third and fourth attorneys were withdrawn because they each had a legal conflict precluding representation of the defendant. Within 25 days, a fifth and sixth attorney were each appointed and allowed to withdraw. The seventh attorney represented the defendant for nearly seven months before being withdrawn when the defendant questioned her qualifications to handle the case. King’s appointment to represent the defendant was vacated by the November 2015 decision of the Virgin Islands Supreme Court, presumably resulting in a ninth attorney being appointed to represent the defendant nearly two years after she was charged.
Instead of merely seeking to withdraw from an involuntary appointment, attorneys Justin Holcombe and Robert King appealed directly to the Virgin Islands Supreme Court, asking it to declare that the Superior Court’s practice of conscripting attorneys to represent the indigent violated Virgin Islands’ statutory law. As the Court put it: “The question before us is whether this system complies with the Legislature’s directive, when representation by the Office of the Territorial Public Defender is not available, that ‘the judges of the Superior Court . . . appoint counsel for such indigent persons from a panel of private attorneys maintained by the Superior Court for this purpose.’ 5 V.I.C. § 3503(a).”
The Virgin Islands Supreme Court decided that “the Superior Court’s practice of appointing private attorneys from a list of all members of the Virgin Islands Bar to serve involuntarily as criminal defense counsel violates this statute.” The court concluded that “the phrase ‘panel of private attorneys’ cannot encompass every private-sector member of the Virgin Islands Bar.” The court also determined that the phrase envisioned a “voluntary, rather than compulsory, panel.” The court went further still, finding that “the Superior Court has infringed on this Court’s ‘exclusive jurisdiction’ over the Bar,” by making compulsory representation in appointed cases “a de facto requirement” of being a lawyer in the Virgin Islands.
“Since maintenance of the panel is statutorily vested with the Superior Court,” the Virgin Islands Supreme Court directed the Superior Court to “propose an appropriate procedure in the first instance, based on the guidance it has received from this Court through this opinion.” And the court provided extensive guidance:
“We are confident that, going forward, the Virgin Islands will join virtually every other United States jurisdiction in permitting the indigent defense function to be performed by qualified volunteers, whether they be attorneys employed by the Office of the Territorial Public Defender or private attorneys who have willingly joined a panel. . . . In addition to actually creating a panel – which would necessarily include publicizing its existence and establishing a process for accepting applications – other ancillary issues would also need to be addressed. For example, . . . the Virgin Islands Judiciary will need to consider (1) the minimum experience, if any that should be a prerequisite to joining the panel; (2) whether to establish one panel or tiered panels based on the seriousness of the offense; (3) the rate of pay for the attorneys who have volunteered to accept appointed cases from the panel; and (4) how to proceed in the event the number of attorneys who join the panel is insufficient to provide services to all indigent defendants.”
The Virgin Islands Supreme Court noted that, once promulgated by the Superior Court, any such rule “must be approved by this Court.” The Superior Court proposed its new rule for the appointment of attorneys to represent the indigent in conflict cases in February 2016. Both Holcombe and the Virgin Islands Bar Association filed notices in the Virgin Islands Supreme Court in February 2016, objecting to the new rule for various reasons. Meanwhile, the Superior Court is seemingly appointing attorneys, including through involuntary appointments, pursuant to the proposed rule. Yet as of this writing, the Supreme Court has taken no further action on the matter, although it should.
The right to counsel for indigent defendants in conflict cases
The Sixth Amendment right to counsel is a right held by each individual. It does not matter if a government provides effective representation to the first co-defendant, if not to the second; or to people charged with felony offenses, if not to those charged with misdemeanors; or to those charged in certain courts, if not to those charged in other courts. It does not matter even if government generally provides adequate counsel to most people. If indigent defense services are structured in a way that denies the effective assistance of counsel to any group of indigent defendants, the system itself is constitutionally deficient.
Every indigent defendant charged with a crime in the Virgin Islands who cannot, for whatever reason, be represented by the Office of the Territorial Public Defender will receive an attorney appointed under the proposed new Superior Court rule. As currently promulgated, the new rule fails in at least two ways to guarantee effective assistance of counsel to those indigent defendants.
First, under the proposed new rule, the system of appointing counsel is not independent; that is, it is subject to undue influence by the judiciary. In the 1979 case of Ferri v. Ackerman, the United States Supreme Court observed that “independence” of appointed counsel to act as an adversary is an “indispensible element” of “effective representation.” National standards of justice reflect the aims of the U.S. Supreme Court. The ABA Ten Principles explicitly require that the “public defense function, including the selection, funding, and payment of defense counsel, is independent.” In the commentary to this standard, the ABA notes that 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” noting specifically that “[r]emoving oversight from the judiciary ensures judicial independence from undue political pressures and is an important means of furthering the independence of public defense.”
The proposed Superior Court rule allows for the presiding judge of the Superior Court to choose which attorneys are on the panels, among those who apply, and to “add or remove attorneys from the panel at any time he or she sees fit.” In other words, any attorney who desires to receive appointments may perceive that he must please the judge, rather than focusing on providing constitutionally effective services for each and every defendant. Fearing the loss of income if they fail to please the judge who hired or supervises them, attorneys may take on more cases than they can ethically handle and then triage their available hours in favor of some clients but to the detriment of others, thereby failing to meet the parameters of ethical representation owed to all clients. Though a judge is unlikely to overtly say “Do not file motions in my courtroom,” attorneys may subconsciously bring into their calculations what they think they need to do to garner favor with a judge in order to get the next appointment. When attorneys take into consideration what must be done to please the judge, by definition they are not advocating solely in the interests of a client as is their ethical duty.
For these reasons, the system for appointing lawyers to represent indigent defendants in conflict cases should be placed under an independent public defense commission, similar to the Board that administers the Office of the Territorial Public Defender for primary appointments.
Second, the proposed new rule does not establish the minimum skills, experience, and/or training that an attorney must have before being appointed to represent an indigent defendant in a criminal case. The American Bar Association Model Rules of Professional Conduct require lawyers to provide “competent” representation to their clients. As the ABA explained more than 20 years ago, “[c]riminal law is a complex and difficult legal area, and the skills necessary for provision of a full range of services must be carefully developed. Moreover, the consequences of mistakes in defense representation may be substantial, including wrongful conviction and death or the loss of liberty.” For this reason, national standards require that lawyers be qualified to handle any case to which they are assigned. As ABA Principle 6 makes clear, the obligation to provide competent representation is shared equally by the attorney and by the indigent defense system. “Principle 6: Defense counsel’s ability, training, and experience match the complexity of the case. Counsel should never be assigned a case that counsel lacks the experience or training to handle competently, and counsel is obligated to refuse appointment if unable to provide ethical, high quality representation.”
The proposed Superior Court rule, though, does not establish any qualifications at all for the attorneys appointed to represent indigent defendants in criminal conflict cases. Instead, the determination of whether an attorney has sufficient skill, knowledge, or experience to serve on a particular panel or to be appointed in a particular case is left to the unguided discretion of Superior Court judges.
Conclusion
The Supreme Court of the Virgin Islands should fulfill its duty to ensure that every indigent defendant receives the effective assistance of counsel, as well as its promise to “ensure that members of the Virgin Islands Bar are not systematically conscripted to provide indigent defense in violation of Virgin Islands statutory law.” And so it should approve, modify, or disapprove the proposed Superior Court rule 20.
The Virgin Islands judiciary, or the legislature for that matter, can readily look to a number of places across the United States for models providing effective right to counsel services, many of which were mentioned in the In re Holcombe decision. For those who may think that the laws governing territories present unique hurdles, the 6AC suggests that Guam may have a better model.
Guam is the U.S. territory most similar in population to the Virgin Islands (Guam 159,358; Virgin Islands 106,405), and like the Virgin Islands it has not adopted a constitution. It is governed by the Organic Act of Guam, as passed and amended by the U.S. Congress. 48 U.S.C. § 1421b(g) of that Act guarantees the criminally accused the right “to have the assistance of counsel for his defense” in all criminal prosecutions.
In 1975, the Public Defender Services Corporation (PDSC) was established in Guam to provide representation to indigent people in the territory’s trial and appellate courts. The PDSC is a non-profit corporation overseen by a five-person Board of Trustees. In addition to handling all criminal matters, PDSC represents clients in some civil matters, including uncontested guardianship, domestic violence, and land disputes. By statute, PDSC has “the power to do any and all things necessary to further the purposes” of the right to counsel, including setting standards and policies.
In 2004, the Judicial Council of Guam established a conflict defender division called the Alternate Public Defender (APD). The Judicial Council entered into a Memorandum of Understanding with the PDSC under which PDSC provides administrative services to APD, while APD has a separate office and appropriate ethical screens.
If neither office can handle a client due to a conflict, then a member of a Private Attorney Panel (PAP) is appointed in accordance with local court rules. Rather than place the selection and oversight of attorneys with the judges, the rules created a Standing Committee to oversee the PAP. The Standing Committee is five attorneys “who possess sufficient experience and interest in the local criminal justice system to administer the PAP.” The chief justice of the Supreme Court appoints four of the attorneys, and the Guam chief public defender is the fifth. The clerks of the Superior and Supreme Courts, or their respective designees, along with the chair of the judiciary’s Subcommittee on Indigent Defense are ex officio non-voting members.
Attorneys apply to serve on the PAP, and the Standing Committee determines which attorneys have the necessary qualifications to serve on a particular panel. The Standing Committee also identifies any difficulties in administering the PAP and makes recommendations to the Guam Supreme Court for changes needed to the appointment rules. The Standing Committee additionally coordinates with the PDSC to provide regular ongoing training for panel attorneys. The courts appoint PAP attorneys in when needed in conflict cases on a strictly rotational basis, in alphabetical order, except that panel attorneys “may refuse or ‘pass’ an appointment when unavailable to assume the case due to scheduling conflicts, workload, or other good cause.”
While Guam’s three-tiered appointment structure points the way forward for the Virgin Islands, the Guam system itself has a few structural defects that need attention. For example, the Board overseeing the PDSC is not entirely independent of the judiciary, because the chief justice of the Supreme Court and the presiding judge of the Superior Court are two of the five members. It is simply the case that the potential for conflicts exists whenever members of the board that oversee indigent representation also preside over cases handled by indigent defenders. As a second example, APD is a creation of the Judicial Council. It exists year to year pursuant to a MOU. It could be terminated at any time by either signator to the MOU. There have been discussions to statutorily create APD and place that office under PDSC for administrative purposes.
