Assigned Counsel Now Take On Wider Variety Of Cases
Dylan P. Kletter is a young lawyer at the international firm of Brown Rudnick. Most of his time is spent representing private equity investment funds. But from time to time Kletter thinks it's important for lawyers like himself to see "how the other half lives" and, at the same time, gain valuable court experience.
That's why Kletter applied to the state's assigned counsel program to serve as a defense attorney in appellate cases in which the state Public Defender's Office has a conflict of interest.
Call it beginner's luck or maybe just getting the right case at the right time, but Kletter recently won his first case as an assigned counsel, appealing a man's ineffective assistance of counsel claim that had been rejected by a habeas court. In a rare occurrence, the state Appellate Court sided with Kletter's client; Kletter had expected to lose "many times over" before successfully appealing a habeas ruling.
"It's such a rare win," said Kletter, noting that people have reached out to him to congratulate him, including Stamford Public Defender Barry Butler. "I did truly believe he had a very good claim and I'm very pleased as to how it turned out."
Kletter's client is Branden Holloway, who was arrested in November 2005 following a drug bust. In addition to a gun charge and other drug charges, Holloway was convicted of possession of narcotics with the intent to sell within 1,500 feet of a public housing project. Kletter explained that a conviction on the latter charge requires more than a defendant being found with illegal drugs within 1,500 feet of a housing project.
"This crime requires proof beyond a reasonable doubt that you intended to sell it within 1,500 feet," said Kletter. "If you were walking within 1,500 feet of a [housing project] and had in your pocket a saleable amount of cocaine… the state must prove you intended to sell it within 1,500 feet, rather than walking past it and intending to sell it a mile down the road."
Kletter said the jury instruction issued by the judge at Holloway's trial was misleading on this point, but that Holloway's public defender, David Marantz, never challenged the instruction. This charge alone meant three years behind bars. Holloway's total sentence was 11 years.
Holloway's initial appeal of the case to the Appellate Court also did not challenge the jury instruction. While in prison, Holloway filed a habeas ineffective assistance of counsel claim, which did cite the jury instruction. But the habeas court ruled that the instruction was proper, and thus the public defender did nothing by not challenging it.
That's when Kletter came in — as Holloway's final hope of getting those three years lopped off his sentence. Kletter challenged the habeas ruling to the Appellate Court. The judges ruled that the jury instruction was improper, and so Holloway's lawyer provided ineffective counsel when he failed to challenge it.
"It is clear beyond question that the trial court's instructions… were constitutionally deficient because they omitted all references to or explanation of the intended location-of-sale element of that offense," wrote Appellate Judge Michael R. Sheldon.
At a hearing scheduled for this week before the habeas court, prosecutors will decide whether to pursue a retrial on the intent to sell within 1,500 feet of public housing charge or to simply let Holloway be freed since he's just finished serving the other eight years of his sentence. "My hope is that he'll walk out a free man," said Kletter.
Kletter said the recent decision in this case should "shine a spotlight" on the assigned counsel program.
"As an associate, I was looking for ways to get what in the litigation world is called first-chair experience, such as taking depositions, examining witnesses at trial, briefing and arguing appeals," said Kletter. "At the same time, the client receives the same legal service as that of a large corporation or private equity fund."
Kletter's legal background includes clerkships for Connecticut Supreme Court Justices Barry R. Schaller and C. Ian McLachlan, as well as Hartford Superior Court Judge Christine E. Keller. Kletter assumes this was why his application to serve as an assigned counsel in appellate cases was accepted.
He has been offered other assignments. "I'm part of a pool of X number of attorneys who are designated to take these appeals on," said Kletter. "I'm of the mindset to do one or two a year. They've told me that's fine. You let them know when you're available to take on a case."
Previously, Kletter would have been referred to as a special public defender. But in 2011, the Public Defender Services Commission and the state's Child Protection department merged. Private lawyers are no longer sought only for criminal work. The merged departments also handle habeas appeals, as well as juvenile delinquency, child protection, guardian ad litem, and family court matters, explained John Day, director of assigned counsel for the state.
In criminal cases, assigned counsel are brought in when a conflict of interest requires that an attorney from outside the Public Defender's Office represent the individual. In Kletter's case, since Holloway was accusing his public defender of ineffective assistance of counsel, there would have been a conflict if someone else from the Public Defender's Office handled the habeas challenge.
Day said there are roughly 450 attorneys contracted with the state to serve as assigned counsel. "Of those 450 overall, about 200 do child protection work," said Day.
Typically, the program seeks applicants beginning in December for cases that run through the following state fiscal year of July to June. Day said some relevant experience is necessary to get a position. "In order to take cases in a certain [legal] area, we have a whole bunch of qualifications we look for," said Day.
Successful applicants are awarded a contract called a personal services agreement. Depending on the work, payment is either hourly or a flat fee. For instance, assigned counsel who handle cases at the judicial district level receive $1,000 per case. Those who take on cases in geographical area courts, which handle lesser crimes, receive $350. Juvenile cases also pay $350.
If a case is involved enough to warrant hourly pay, the rate is $75 for felonies, serious juvenile crimes, habeas corpus cases and appellate work. Misdemeanors pay $50 an hour. Lawyers need pre-approval for additional costs such as experts, investigation, and travel.
Every lawyer taking on assigned counsel cases is required to complete six hours of annual training offered by the Public Defender's Office. In addition, attorneys taking assigned counsel assignments for the first time must complete a basic orientation course offered each summer.
Day said newly assigned counsels also get paired up with a mentor for the first year.
Lawyers under contract as assigned counsel can turn down any case offered to them, Day said, and there's no minimum number of cases a lawyer must handle per year.
"It's useful for attorneys not always practicing in the criminal sphere to every once in a while see how the other half lives," said Kletter. "It's a good healthy thing for people who do civil litigation. It's been a real positive experience for me on many levels."•
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