Judge asks for new complaint in indigent defense lawsuit - The Denver Post

Judge asks for new complaint in indigent defense lawsuit - The Denver Post

A coalition of defense attorneys suing to allow poor people accused of misdemeanor and traffic offenses access to counsel before entering plea negotiations were sent back to the drawing board in U.S. District Court today.

Judge John Kane said he sympathized with their concerns that current state law may be infringing on indigent defendant's 6th Amendment rights, but asked them to re-draft their complaint against the state in an ongoing civil suit.

State court prosecutors, one of the targets of the lawsuit, argued that without specific examples of defendants whose rights to counsel were violated, they would have trouble defending themselves against the complaint.

Kane dismissed the defense attorneys' complaint, giving them 60 days to re-file and possibly to find indigent people who had been harmed by the state law that requires those charged with a misdemeanor to discuss a plea with prosecutors before receiving counsel.

"The statute itself seems to be harnessed to a utilitarian calculus in an effort to save money," Kane said. "We do have an obligation to the Constitution."

Kane cited defendants who have been deported after they took plea agreements as cases where indigent defendants may not have been aware of the collateral consequences of their plea agreements.

However, he said he remains concerned about whether the coalition of defense attorneys have standing to file the lawsuit on their own behalf.

Scott Llewellyn, representing the Colorado Criminal Defense Bar and the Colorado Criminal Justice Reform Coalition, tried to argue that public defenders were being rebuffed in their statutory duties to represent the indigent and so could file the suit.

Boulder District Attorney Stan Garnett, speaking for the state, celebrated Kane's dismissal of the complaint. He said the nuanced problem of who gets counsel and when is one for the state legislature to resolve.

"To have public defenders appointed for every misdemeanor case is going to cost millions and millions of dollars," Garnett said after the hearing. "Judge Kane doesn't control the budget. I don't control the budget."