Office, Not Chief, May Properly Be Appointed As Counsel

The Virgin Islands Supreme Court vacated an order appointing the Chief Territorial Public Defender as counsel in a complex criminal case. The trial court may appoint the Office to a case but may not designate the particular attorney assigned.

The defendant initially had retained counsel 

In 2008, Miller was charged with a litany of offenses, including violations of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. (“CICO”). Miller’s trial on these crimes commenced in May 2011, in which he was represented by the law firm of Dudley Clark & Chan, LLP. Following five days of deliberations, the jury was unable to reach a unanimous verdict, which resulted in the trial court declaring a mistrial on June 24, 2011.

The firm was thereafter permitted to withdraw for nonpayment of fees.

A public defender was appointed but withdrew due to a claimed conflict of interest.

The court did not find an actual conflict of interest, but nevertheless relieved Attorney Leycock from the case because it concluded that there existed a potential for a conflict of interest which warranted Attorney Leycock’s withdrawal. The court simultaneously ordered, “Chief Public Defender Samuel Joseph, Esq., is appointed to personally represent Defendant Miller.” (JA at 154.) Lastly, the court directed Attorney Joseph to create an “ethical wall” within the Office of the Territorial Public Defender to ensure that Miller received conflict-free representation.

At the beginning of the following year, on January 27 and 28, 2014, Attorney Joseph filed two motions to be relieved as counsel, raising substantially the same two issues. First, Attorney Joseph challenged the legal efficacy of the “ethical wall” which had been ordered by the court. Attorney Joseph argued that members of the Public Defender Administration Board and employees of the Office of the Territorial Public Defender had relationships with related defendants which gave rise to conflicts of interest, and he posited that those conflicts were imputed to the entire office. Attorney Joseph also contended that, under 5 V.I.C. § 3503(a), the Superior Court lacked the requisite authority to select an individual public defender to represent an indigent defendant, adding that such an order was disruptive to the operation processes of the Office of the Territorial Public Defender.

 The court decided the appeal on its merits

In his brief, Attorney Joseph informs that Attorney Leycock is no longer employed by the Office of the Territorial Public Defender, and concedes that the conflict-of-interest issue pertaining to Attorney Leycock’s representation of Miller is now moot. (Appellant’s Br. at 15.) Therefore, we proceed to address the sole remaining issue submitted for this Court’s review: whether the Superior Court exceeded its authority by specifically assigning Attorney Joseph to represent Miller in the criminal proceedings attendant to this appeal.

The trial court exceeded its authority by appointed the Chief rather than the Office

Admittedly, the trial court was justified in being concerned about the history of counsel involved in the representation of Miller, and we acknowledge the Superior Court’s emphasis on providing conflict-free representation for Miller. Nevertheless, choosing a specific public defender was not the appropriate solution for addressing the court’s concerns, as the order superseded the role of the Chief Public Defender and violated the separation of powers doctrine. See State ex rel. Robinson, 48 S.W.3d at 69-70 (while the trial court had a legitimate interest in “break[ing] the chain of continuances made by withdrawing defenders,” and ensuring that defendant’s case proceeded to trial without further delays, “[t]he trial court acted in excess of its authority” when it appointed specific public defenders to represent the defendant). It is the Chief Public Defender—and not the court—who possesses statutory managerial authority, and is best positioned to assess the Office’s resources and experience of its lawyers, in achieving effective case management...

Upon a finding of a defendant’s indigence, the Superior Court may appoint the Office of the Territorial Public Defender as counsel. However, the court lacks the statutory authority to order that a specific public defender be assigned to represent a defendant. Accordingly, we vacate the court’s orders appointing Attorney Joseph to represent Miller in the underlying criminal proceedings and remand this case so that the Superior Court may appoint the Office of the Territorial Public Defender, leaving the determination as to the specific attorney to be assigned to Miller to be made within the discretion of the Chief Public Defender.

(Mike Frisch)