Wednesday, July 25, 2012

Defendant Must Receive Due Process On Issue Of Forfeiting Right To Counsel

The Minnesota Supreme Court reversed in part and remanded a drug and firearms conviction in a matter in which the trial court determined that the defendant, by his conduct, had forfeited his right to appointed counsel.

The court held that a defendant is entitled to (and here was denied) appropriate due process protections prior to a forfeiture determination.

In a footnote (n. 7), the court also expressed concern about the manner in which the appointed public defender raised the issue. The court found a failure of zealous representation and improper disclosure of confidential information:

Defense counsel, faced with circumstances that prohibit continued services as counsel for the defendant, should seek the court's approval to withdraw from the litigation, without disclosing the underlying reasons...What should not be done is what was done here, in other words, advocating that the client of the Office of the Public Defender should not have counsel provided at public expense.

The court concluded that a client who makes "credible threats to harm an attorney or an attorney's family" may have forfeited the right to counsel. A hearing on remand will be held to determine if the defendant engaged in such misconduct. (Mike Frisch)

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