Must a Lawyer Appointed by the Supreme Court to Represent a Pris
DEVELOPMENTS IN VERMONT LAW
By Kimberly B. Cheney
Must a Lawyer Appointed by the Supreme Court to Represent a Prisoner Sandbag the Client by Telling the Court the Appeal is Frivolous?
Kenneth Bailey pled guilty to domestic assault and sexual assault. While in prison he filed for Post Conviction Relief (PCR) a proceeding similar to habeas corpus, (The Great Writ) in which a prisoner claims he is illegally imprisoned. Bailey, representing himself, lost in the Superior Court. He appealed to the Supreme Court and asked for a lawyer. The Court appointed Attorney Allison Fulcher to represent him. Fulcher reviewed the case. She then filed a motion to withdraw as counsel citing her professional obligation not to maintain frivolous suits, or knowingly make false representations to a Court. Justice Dooley, acting alone, required Fulcher to lay out her reasons why she thought Bailey's claims were frivolous. She refused. The Defender General then appealed Justice Dooley's order to the full Court. The Court then appointed Attorney Michael Rose to argue for Justice Dooley's position against the Defender General.
Three Justices of the Court ruled Fulcher could withdraw based solely on her assessment of her ethical obligations. Chief Justice Reiber, Justices Skoglund and Burgess ruled a prisoner doesn╒t have a constitutional right to an attorney seeking PCR, only at the trial stage. They argued it would be wrong to order Bailey╒s own lawyer to point out the shortcomings of his case since he could still represent himself in the Supreme Court, and the Court could see that justice was done. These justices found persuasive the fact that the Defender General has a limited budget which would be dissipated on cases that the office believes are frivolous. They haven't been bashful about bringing close cases, they ruled, so the Court should trust their judgment.
Justice Dooley criticized the 'secret process' used to deny Bailey a lawyer which amounted to a 'rubber stamp' of whatever the lawyer said. No Court could review the decision. Worse, the real decision was made by the Defender General to deny public funding for a needy litigant based on budget concerns without any disclosure of facts showing an ethical violation. Granting permission to withdraw, he said, is a de facto decision on the merits. Saving money for indigents is not justice, he argued.
Justice Johnson disagreed with Justice Dooley and all the other judges. Fulcher should be required to file a brief she argued, and the Court could determine the merits of the case. The lawyer shouldn╒t be able to withdraw merely on her own say so if the Court is to do its duty to protect indigentsright to counsel. Justice Dooley╒s plan of ordering an attorney give reasons why the appeal is frivolous would 'sandbag' her client. Instead of helping Bailey, she would be sealing his doom. If the Court ordered Fulcher to file a brief she couldn't be guilty of an ethical violation. The process would be open, there would no 'sandbagging,' and justice should depend on the facts, not on available money.
A struggle for those who can't help themselves in tough economic times. In re Kenneth Bailey, Sr. 2009 VT 122.
