State v. Evans

GORDON, Justice

(concurring in part and dissenting in part).

I agree with the majority that these cases have progressed beyond being active state cases and that the prosecutors, state and county, have no standing to object at this stage in the cases to county defender attorneys representing these defendants before the Ninth Circuit Court of Appeals or the United States Supreme Court. If the Court’s opinion had stopped there, I would have joined it. It did not, however. The opinion proceeded to gratuitously answer questions for future cases which I feel would be better dealt with when the facts of those cases are known. The dictum I refer to is:

“We find nothing in A.R.S. § 11-584 defining the duties of the public defender which would allow the public defender to represent indigent defendants in the federal system.”

This portion of the opinion was not necessary for the disposition of these cases. It must have been intended to set down a rule to control future cases where the public defender’s representation may be somehow challenged by the Board of Supervisors of Maricopa or Pima Counties. I do not object to the use of dictum for this purpose. My disagreement is with the rule itself, which may cause unjust results and a lack of judicial economy.

My first concern is with the justness of making a distinction as to whose lawyers may or may not continue to represent criminal defendants as their cases proceed from state to federal courts. Although this Court’s opinion finds nothing in A.R.S. § 11-584 to allow public defenders to represent Arizona defendants in federal courts. I do not find anything in that section or any other law in Arizona which would preclude public defenders from doing so. Perhaps this Court is worried about taxpayers’ funds being used to pay lawyers to represent indigent defendants in federal courts. This concern does not have its source in the wording of A.R.S. § 11-584 or any supporting statute. It is possible that this problem may even be avoided if continued representation were allowed.

Although there is no logical reason for distinguishing between these and other felony cases, capital offenses are unique in some ways. One of these is that defense counsel has defendant’s life in his hands. These defendants are presently represented by attorneys who have been long familiar with the backgrounds of their cases, the *156evidence and exhibits taken in trial, and the rulings made both by the trial court and this Court. In addition, a relationship of trust and confidence may have become established between the defendants and their counsel. It not only seems unfair, but very inefficient, to require that defendants under these circumstances now be required to accept a lawyer from the federal system who is not only a total stranger to them, but who is totally unfamiliar with the case, and who must quickly familiarize himself with all the prior holdings and the intricacies of the case that present counsel has already mastered. All the while the Attorney General of the State of Arizona will be opposing the new attorney’s attempts to get the defendant’s case into the federal system under A.R.S. § 41-193(A)(3). This is the same Attorney General who usually represents the state in the state system and who probably has superior knowledge of the facts and law at this point over defendant’s new counsel. It would seem that it would be fairer and more economical to allow defendant’s present counsel to continue in federal representation as the state’s counsel is allowed to.

The majority correctly states that federal courts have discretionary authority pursuant to 18 U.S.C. 3006(A)(g) to appoint counsel for the representation of indigents seeking relief from state convictions pursuant to 28 U.S.C. 2254. This representation comes about, however, after the indigent defendant has convinced the district court that the “interests of justice so require.” To assume that all indigent defendants have the intellectual, literary, language and legal skills to list all applicable legal theories of constitutional error on which his defenses rest in these applications without the assistance of counsel is an assumption greater than I am willing to indulge in or agree to.

I concur in the reasoning of the majority that the taxpayers of Maricopa and Pima Counties should not be required to pay for indigent defendants’ representation by attorneys in the federal court once the federal courts have decided to take jurisdiction. However, there appears to me to be a gap between the point at which Arizona courts’ jurisdiction terminates and the one at which federal courts’ jurisdiction begins. It is my feeling that this gap is not bridged by the majority opinion and that certain defendants may fall into this crack and disappear because their rights are not able to jump the chasm. For reasons of fairness, economy and efficiency, I believe A.R.S. § 11-584 should be construed to require the public defenders in Maricopa and Pima Counties to remain responsible to advise indigent defendants as to their rights in federal courts and to assist them in the preparation and filing of these applications until such time as federal jurisdiction is either accepted or denied. Also, assuming that lawyers within the public defender’s office are authorized to practice in the federal courts, I see no statutory or constitutional obstruction to those attorneys continuing their clients’ representation in federal court beyond the point of acceptance of federal jurisdiction, provided arrangements can be made between the federal and state authorities for the reimbursement of the costs of that representation.