Separate Counsel, An Evidentiary Hearing, Other Due Process Protections Must be Afforded to a Defendant Who Has Made Credible Threats Against His Public Defender Before Court May Order That Defendant Has Forfeited His Right to Appointed Counsel

State v. Krause, Minn.S.Ct., 7/25/2012.  The state charged Mr. Krause with, well something, but it doesn’t really matter because he’s getting at least a remand if not a new trial for reasons having nothing to do with the merits of the state’s case against him.  All the drama was before the trial:  Mr. Krause threatened his public defender and his public defender’s family.  (He also tried unsuccessfully to get a different public defender assigned to represent him.)  The chief public defender asked the trial court to discharge the public defender office, asserting that Mr. Krause had forfeited his right to a court appointed attorney.  The trial court held a hearing on that request; Mr. Krause was there but he did not have an attorney; indeed, the chief public defender was there arguing against Mr. Krause.  The trial court granted the motion.  Mr. Krause went to trial without an attorney.  The jury convicted him.

The focus here is on the forfeiture of counsel hearing.  Because the alleged misconduct occurred outside the court room, everyone agreed that Mr. Krause was entitled to an evidentiary hearing so that the judge could decide what happened.  No, the question here is just how much process is due?  Justice G. Barry Anderson, writing for a unanimous court, reaches back to the analysis from Matthews v. Eldridge 424 U.S. 319 (1976) to come up with an answer to that question.

It turns out that quite a bit of process is owing.  First, the chief public defender can’t just barge into the judge’s chambers, shouting that some defendant just threatened his staff attorney and his staff attorney’s  family so he’s forfeited his right to a public defender.  That’s a violation of the professional conduct rules that require an attorney to “zealously assert” his client’s interest.  No, no.  The chief public defender must quietly ask to withdraw for “professional considerations.”  Which the trial court is supposed to grant.

Then, where a hearing is required, the trial court has to appoint either a public defender from a different district, or an attorney otherwise unaffiliated with the district public defender’s office to represent the defendant during a forfeiture of counsel evidentiary hearing.  This seems to say that a part time public defender within the same district won’t do.   At that hearing:

The judge should hear evidence regarding the alleged conduct that may give rise to the finding of forfeiture. The defendant should have the opportunity to offer evidence, and to cross-examine witnesses, both as to the allegations of his misconduct and the totality of the circumstances that may bear on the forfeiture finding, including his mental competency and psychological condition, any other mitigating considerations, and the willingness of appointed counsel to continue the representation.

The standard of proof at this hearing is whether Mr. Krause engaged in “extremely serious misconduct” that warrants forfeiture of his right to counsel.  “Credible threats to harm an attorney or an attorney’s family” may meet this test.  (Actual physical attacks also count.  State v. Lehman, 749 N.W.2d 76 (Minn.Ct.App. 2008).