STATE OF NEW HAMPSHIRE SUPREME COURT STATE OF NEW HAMPSHIRE v. HEIDI BROUILETTE

STATE OF NEW HAMPSHIRE SUPREME COURT 2013-0251 STATE OF NEW HAMPSHIRE v. HEIDI BROUILETTE Appeal From An Interlocutory Ruling Of The Hillsborough County North Superior Court BRIEF FOR AMICUS CURAE NEW HAMPSHIRE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS SUPPORTING DEFENDANT HEIDI BROUILETTE Andrew R. Schulman, Esq. (NH Bar 2276) GETMAN, SCHULTHESS & STEERE, P.A. 1838 Elm Street Manchester, NH 03104 (603) 634-4300 ASchulman@GSS-Lawyers.com Michael J. Iacopino, Esq. (NH Bar 1233) Brennan Caron Lenehan & Iacopino 85 Brook Street Manchester, NH 03104 (603) 668-8300 MIacopino@bclilaw.com

TABLE OF CONTENTS TABLE OF AUTHORITIES... ii QUESTION PRESENTED... 1 INTEREST OF THE AMICUS CURIAE... 2 STATEMENT OF THE CASE AND THE FACTS... 3 ARGUMENT... 3 IT IS NOT NECESSARY TO REACH THE CONSTITUIONAL QUESTION RAISED BY THE PARTIES 3 A. Introduction... 3 B. The Declaration Of Purpose And The Statutory Scheme... 4 C. Administrative Rules... 7 D. Practice Under Analogous Statutes In Other States... 9 F. RSA Chapter 604-A Should Be Construed In Harmony With (A) The Federal Statutory Example (B) The Relevant ABA Standards, And (C) The Goal Of Promoting Pro Bono Representation... 12 G. Removing Constitutional Doubt... 14 CONCLUSION... 14 CERTIFICATE OF SERVICE... 15 ADDENDUM (Affidavit Of Attorney Leonard Harden)... 16 i

TABLE OF AUTHORITIES Cases: Appeal of Morton, 158 N.H. 76 (2008)... 9 Appeal of Salem Regional Medical Center, 134 N.H. 207 (1991)... 9 Appeal of Town of Seabrook, 163 N.H. 635 (2012)... 9 Appeal of Weaver, 150 N.H. 254 (2003)... 9 Arnold v. Higa, 600 P.2d 1383 (Haw. 1979)... 11 Asmussen v. Commissioner, N.H. Department of Safety, 145 N.H. 578 (2000)... 5 Catholic Medical Center v. Elliot Hosp., 130 N.H. 448 (1988)... 9 Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)... 9 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)... 5 Hurley v. Public Service Company of New Hampshire, 123 N.H. 750 (1983)... 9 In re Search Warrant (Med. Records of C.T.), 160 N.H. 214 (2010)... 4 Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)... 2 Moore v. State, 889 A.d 325, 390 Md 343 (Md. 2005), cert. den. 549 U.S. 813, 127 S. Ct. 59, 166 L. Ed. 2d 22... 11 Opinion of Justices, 113 N.H. 201 (1973)... 4 Opinion Of The Justices ((Prior Sexual Assault Evidence), 141 N.H. 562 (1997)... 4 People v. Worthy, 109 Cal. App.3d 514, 167 Cal. Rptr. 402 (Cal. App. 1980)... 11 State v. Atkins, 143 N.H. 242 (1998)... 4 State v. Brown, 134 P.3d 753, 139 N.M. 466 (N.M. 2006)... 11, 14 State v. Burns, 4 P.3d 795 (Utah 2000)... 5, 9, 10 State v. Etienne, 163 N.H 57 (2011)... 4, 5 State v. McKeown, 159 N.H. 434 (2009)... 4, 5 ii

State v. Ploof, 162 N.H. 609 (2011)... 14 State v. Thomas, 150 N.H. 327 (2003)... 5 State v. Wool, 648 A.2d 655, 162 Vt. 342(Vt. 1994)... 14 Statutes: 18 U.S.C. 3006A... 12 RSA 541-A... 8 RSA 541-A:13... 8 RSA Chapter 604-A... passim RSA 604-A:1... 3, 4, 5 RSA 604-A:2... 4 RSA 604-A:6... passim RSA 604-A:10... 8 Utah Code Ann. 77-32-1 et. seq... 9 Court Rules N.H. Rule Prof. C. 6.1... 13 Regulations N.H. Code Admin. Rules, Adm. 1003.05... 8 N.H. Code Admin. Rules, Adm. 1003.01... 8 N.H. Code of Admin. Rules, Adm. 1003.02... 8 Constitutional Provisions New Hampshire Constitution, Part 1, Article 15... 3 United States Constitution, Amendment VI... 3, 13 iii

Other Authorities: United States Administrative Office Of The Courts Guide to Judiciary Policy, Vol. VII, Defender Services... 12 iv

QUESTION PRESENTED DOES RSA 604-A:6 REALLY DIVEST INDIGENT CRIMINAL DEFENDANTS OF THEIR STATUTORY RIGHT TO PAYMENT FOR NECESSARY SERVICES OTHER THAN COUNSEL SIMPLY BECAUSE THEY APPEAR THROUGH PRO BONO, REDUCED FEE OR RETAINED COUNSEL OR CHOOSE TO REPRESENT THEMSEVES PRO SE? 1

INTEREST OF THE AMICUS CURIAE The New Hampshire Association of Criminal Defense Lawyers ( NHACDL ) is the voluntary, professional organization of the criminal defense bar in New Hampshire. It has approximately 270 attorney members including almost 70 state court public defenders, all federal defenders assigned to the District of New Hampshire and close to 200 lawyers in private practice. Collectively the membership practices in all ten counties, all eleven superior courts, all fourteen district division courthouses, this court and the federal courts. NHACDL s mission is to safeguard and promote the effective assistance of counsel in criminal cases. This mission furthers the broader public interest because the Assistance of Counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. Johnson v. Zerbst, 304 U.S. 458, 462 (1938). NHACDL sponsors CLEs and training programs, provides mentors to new lawyers who ask for help, operates a listserv and maintains an electronic resource library. NHACDL also takes public policy positions on issues of importance to the criminal justice system. Thus, when an appellate decision is likely to impact the procedural fairness of criminal adjudications for years to come, NHACDL will take a stand. The issues presented in this case are of direct concern to NHACDL, its members and its present and future clients. If the trial court s decision is affirmed, certain indigent criminal defendants will be denied the ability to even request services other than counsel. These include those indigent defendants who are represented on a pro bono or reduced fee basis and those who exercise their Constitutional right to waive counsel altogether and proceed pro se. If such services are made available only to clients of the Public Defender Program and court appointed counsel, these defendants will face a Hobson s choice. They will have to either 2

switch from their counsel of choice to appointed counsel in the middle of their cases or forego Constitutionally necessary services other than counsel. Because no indigent defendant should have to face this dilemma, NHACDL urges this court to reverse and remand this case. STATEMENT OF THE CASE AND THE FACTS pertinent facts. ARGUMENT The State s Brief adequately addresses the procedural history of this case and the I. IT IS NOT NECESSARY TO REACH THE CONSTITUTIONAL QUESTION RAISED BY THE PARTIES A. Introduction This court invited amicus briefs on the question of whether RSA 604-A:6 violates the Sixth Amendment and Part 1, Article 15 of the New Hampshire Constitution by forbidding the expenditure of indigent defense funds for services other than counsel except for defendants who appear through appointed counsel. Put simply, this is an unnecessary question because RSA Chapter 604-A may, should and must be read to allow all indigent defendants to receive necessary services other than counsel regardless of whether counsel is also appointed. The parties and the trial court focused myopically on one fragment of a sentence in RSA 604-A:6 and ignored (a) the overall statutory scheme for indigent defense set forth in RSA Chapter 604-A, (b) the Legislature s declaration of the Chapter s purpose in RSA 604-A:1, (c) the deference that should be given to the Department of Administrative Service s plausible and practical interpretation of the statute as set forth in its administrative rules, (d) the manner in which similar statutes have been construed by courts in other jurisdictions, (e) the differences of opinion on this issue among the justices of the Superior Court, (f) the clear ability, given all of the above, to construe the statute to remove constitutional 3

doubt and (g) the equally clear ability to read RSA Chapter 604-A in harmony with the federal statutory example, pertinent ABA Standards and the strong public policy of encouraging pro bono and reduced fee representation. B. The Declaration Of Purpose And The Statutory Scheme [T]his court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. State v. Atkins, 143 N.H. 242, 244 (1998) (construing RSA 604-A:2). This court construes statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. In re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 220, (2010). See also, State v. Etienne, 163 N.H 57, 72 (2011); State v. McKeown, 159 N.H. 434, 435-436 (2009). The starting point in this case is the express declaration of purpose that the Legislature included in RSA 604-A:1. See e.g., Opinion Of The Justices (Prior Sexual Assault Evidence), 141 N.H. 562, 568 (1997) ( A legislative declaration of purpose is ordinarily accepted as a part of the act. ). See also, Opinion of Justices, 113 N.H. 201, 203 (1973) (same). RSA 604-A:1 states that: The purpose of this chapter is to provide adequate representation for indigent defendants in criminal cases, as a precondition of imprisonment, and indigent juveniles charged with being delinquent in any court of this state. Representation shall include counsel and investigative, expert and other services and expenses, including process to compel the attendance of witnesses, as may be necessary for an adequate defense before the courts of this state. (emphasis added). Thus, Chapter 604-A was designed to ensure that indigent criminal defendants have access to all of the tools required to defend against criminal accusations including necessary services other than counsel. The word shall in the highlighted portion of RSA 604-A:1 suggests that no other provision of the Chapter should be casually construed to deprive a class of indigent criminal defendants of this statutory right. See, Asmussen v. 4

Commissioner, N.H. Department of Safety, 145 N.H. 578, 586 (2000) (statutes will not be construed or applied in a way that nullifies, to an appreciable extent their evident purpose. ). The express legislative purpose set forth in RSA 604-A:1 would be undermined if RSA 604-A:6 is read to prohibit indigent defendants from receiving services other than counsel unless they agree, as part of the bargain, to forgo available pro bono, reduced fee or retained counsel (and to forgo their alternative constitutional right of self-representation). Cf: State v. Burns, 4 P.3d 795 (Utah 2000) (holding that similar language creating minimum standards for indigent defense prohibited conditioning payment for expert and other services on the defendant s acceptance of appointed counsel, despite a separate statutory provision providing that indigent defense services are to be delivered through appointed counsel or public defenders.) Before turning to the text of RSA 604-A:6, one additional guide to its construction must be discussed. Chapter 604-A is a comprehensive scheme for (a) the determination of indigency in criminal and delinquency proceedings, (b) the provision of appointed counsel and services other than counsel to indigent defendants and juveniles and (c) the recoupment of funds expended for these purposes. Therefore, the individual statutory provisions in the chapter cannot be considered in isolation but must be read as part of a unified whole. See e.g., Etienne, 163 N.H. at 72 (statutory provisions must be construed as part of the overall statutory scheme, ), McKeown, 159 N.H. at 436 (same). Reading Chapter 604-A in its entirety, it is impossible to discern an intent to foist appointed counsel on truly indigent defendants who are either insistent on proceeding pro se under Faretta v. California, 422 U.S. 806 (1975) and State v. Thomas, 150 N.H. 327 (2003), or are able proceed through available pro bono, reduced fee or retained 5

counsel. 1 Yet that is exactly what will occur if RSA 604-A:6 is read to prohibit such defendants from receiving necessary services other than counsel unless they accept appointed counsel. RSA 604-A:6 provides as follows: In any criminal case in which counsel has been appointed to represent a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in his case, counsel may apply therefor to the court, and, upon finding that such services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the necessary services on behalf of the defendant. The court may, in the interests of justice and upon finding that timely procurement of necessary services could not await prior authorization, ratify and approve such services after they have been obtained. The court shall determine reasonable compensation for the services and direct payment upon the filing of a claim for compensation supported by an affidavit specifying the time expended, the nature of the services rendered, the expenses incurred on behalf of the defendant, and the compensation, if any, received in the same case for the same services from any other source. The compensation to be paid to any person or association for such services shall not exceed $300 unless the court determines that the nature or quantity of such services reasonably merits greater compensation. The $300 limit for compensation shall not include or apply to reimbursement for expenses reasonably incurred. In any case in which appointed counsel seeks funds for services other than counsel under this section, the application for such funds may be filed with the court on an ex parte basis and may, upon the request of appointed counsel, be sealed until the conclusion of the representation. The trial court read this provision out of context and in isolation to include, by a pregnant negative, a blanket prohibition on providing indigent defendants with services other than counsel unless counsel is appointed. Properly understood, however, RSA 604-A:6 does nothing more 1 The term retained counsel includes a large variety of different arrangements. An indigent defendant may be able to scrape together or borrow funds to retain counsel yet lack resources to pay for necessary expert services, especially if the fair market fee for counsel s time is relatively small and the expert costs are significant. This might be the case, for example, in a Driving Under The Influence Of Prescription Drugs case in which, for reasons specific to the case, the assistance and testimony of a toxicologist is necessary. Counsel may also be retained by the defendant s extended family, with or without an understanding that the defendant will eventually reimburse his relatives. Counsel may also be retained by a defendant who becomes indigent during the course of representation, by for example, losing employment while incarcerated prior to trial and losing the use of his assets due to civil judgments and/or attachments. 6

than control the procedure to be followed when appointed counsel seeks funding for services other than counsel. The statute is altogether silent with respect to pro se defendants and defendants who have pro bono, reduced fee or retained counsel. This silence i.e. the white space between the black letters cannot have been intended to place this class of indigent defendants outside the protection of Chapter 604-A. If there is a pregnant negative in RSA 604-A:6 it is a procedural one. Different or additional procedures may be used in the relatively infrequent cases in which a pro se or counseled defendant applies for services other than counsel. In such cases, the trial court may wish to conduct a broader inquiry than RSA 604-A:6 suggests. For example, in counseled cases, it would be appropriate to inquire into the source and amount of counsel s fee. Likewise, the court may inquire into what sorts of services should be treated as counsel s overhead in light of the fee agreement and the reasonable expectations of the parties. Finally, the provision in RSA 604-A:6 allowing the court to ratify certain expenditures after the fact, may not apply to defendants whose indigency has not yet been determined by the court. Thus, the correct construction of RSA Chapter 604-A is that (a) all truly indigent defendants are statutorily entitled to payment for necessary services other than counsel, (b) those indigent defendants who have appointed counsel must proceed under RSA 604-A:6 if they wish to apply for such funds, (c) other indigent defendants may proceed by motion subject to whatever reasonable procedures the trial court chooses to follow based on the circumstances of the case. C. Administrative Rules This view of the statute or something close to it has been accepted by the Department of Administrative Services. The Department of Administrative Services, Office of Cost Containment works alongside the Judicial Branch in administering RSA Chapter 604-A. 7

Pursuant to RSA 604-A:10,IV, the Commissioner of Administrative Services, with the approval of the Attorney General may promulgate rules under RSA 541-A governing determinations of eligibility for payment of indigent defense expenditures... Any such rules must be approved not only by the Commissioner and Attorney General, but also by the Joint Legislative Committee On Rules. RSA 541-A:13. The administrative rules that were drafted, approved and reviewed in this manner clearly recognize that the courts may appoint counsel or other necessary defense services under RSA Chapter 604-A. See, N.H. Code Admin. Rules, Adm 1003.01: (a) An adult defendant applying for appointed counsel or state payment for other defense services as defined in Adm 1002.02 or state payment of expenses as defined in Adm 1002.03 shall fill out OCC Form 4 by: (1) Furnishing the information specified in Adm 1003.02; and (2) Initialing and signing the form as specified in Adm 1003.03. (b) A juvenile charged with delinquency or a person liable for the support of the juvenile, as applicable, shall assist court personnel in completing that portion of OCC Form 4 which is specified in Adm 1003.02(b)(1). (c) A defendant seeking state payment of defense services other than appointed counsel or state payment of expenses shall make application to the presiding judge by whatever procedure the court requires. (emphasis added). See also, N.H. Code of Admin. Rulesm Adm. 1003.02: When applying for state payment of defense services, including appointed counsel, or state payment of expenses, the defendant shall complete OCC Form 4... (emphasis added.), and N.H. Code Admin. Rules, Adm. 1003.05: A defendant for whom counsel has been appointed, or for whom state payment of other defense services or expenses has been ordered, shall update his or her address and phone number with the office of cost containment every time there is a change of address or phone number during the period in which the defendant still owes the state for the cost of counsel or other defense services or expenses. 8

(Emphasis added.). These administrative rules reflect an understanding that RSA Chapter 604-A allows indigent criminal defendants to receive necessary services other than counsel, regardless of whether they are represented by appointed counsel, pro bono counsel, reduced fee counsel, retained counsel or choose to represent themselves. This practical and plausible interpretation of RSA Chapter 604-A is entitled to substantial deference. See e.g., Appeal of Town of Seabrook, 163 N.H. 635, 644 (2012) ( [I]t is well established in our case law that an interpretation of a statute by the agency charged with its administration is entitled to deference. ); Appeal of Morton, 158 N.H. 76, 78-79 (2008) (same); Appeal of Weaver, 150 N.H. 254, 256 (2003) (same); Appeal of Salem Regional Medical Center, 134 N.H. 207, 219 (1991) (same); Catholic Medical Center v. Elliot Hospital130 N.H. 448, 453 (1988) (same); Hurley v. Public Service Company of New Hampshire, 123 N.H. 750, 754 (1983) (same). See also, Chevron U.S.A., Inc. v. National Resources Defense Council, Inc. 467 U.S. 837, 843-845 (1984) (discussing administrative deference in general). D. Practice Under Analogous Statutes In Other States As noted above, nothing within RSA 604-A expressly prohibits payment for services other than counsel in cases where private counsel represents an otherwise indigent defendant. Other courts have relied on the lack of a prohibition clause to support statutory interpretations that permit such payments. In State v. Burns, 4 P.3d 795 (Utah 2000), the Utah Supreme Court analyzed that state s Indigent Defense Act, Utah Code Ann. 77-32-1 et. seq. The Utah statute directs counties, cities and town to provide timely appointment of competent counsel and the provision of the investigatory and other facilities necessary for a complete defense. Burns, 4 P.3d at 800. The statute also provides for a choice between two methods of delivery appointed 9

counsel or legal aid association. Id. The Utah Supreme Court held that, notwithstanding the lack of any express language allowing indigent defendants to obtain services other than counsel if they had retained counsel, the statute nonetheless required this: The State argues, however, that [the Utah statute] should be read to provide that the "investigatory and other facilities necessary for a complete defense" need be furnished to an indigent defendant only if the [the legal defenders association LDA ] is representing that defendant. To resolve the State's contention, we must analyze the Act in its entirety and harmonize [the relevant] sections in accordance with the legislative intent and purpose of providing indigents with access to the basic tools of defense. In doing so, the unambiguous language of [the section setting forth minimum standards] not be interpreted to contradict its plain meaning. [One section of the statute] provides that a county may set up a nonprofit legal aid association to provide the minimum required services or authorize the court to appoint such services. However, this section cannot be read to mandate the packaging of indigent assistance with LDA representation. To suggest, as the State does, that only those indigents represented by LDA are eligible for the minimum services would be a direct contradiction of the plain meaning of [the section setting forth minimum standards] as well as the legislative purpose of providing indigents with the basic tools of defense. In fact, contrary to its argument, the State indicated at oral argument that an indigent defendant proceeding pro se who has declined standby counsel from the LDA would be able to acquire funding for expert assistance * * * It follows, therefore, that the only requirements for receiving public assistance for expert witnesses are proof of necessity and establishment of indigence.while who is paying for a defendant's attorney may be a factor in the determination of indigency, it is not the determinative factor, and in this case, the court did not allow [the defendant] to have her hearing on indigence without condition of LDA representation. Therefore, the trial court erred in failing to determine whether [the defendant] was indigent and in holding instead that LDA representation was a prerequisite to providing the statutorily required minimum standards for an indigent defense. As a result, even though [the defendant s] father was paying for her defense attorney, [she] was entitled to a hearing for a determination of whether she was indigent without the condition that she accept LDA counsel. Burns, 4 P.3d at 801-802. 10

In State v. Brown, 134 P.3d753, 757 (N.M. 2006), the New Mexico Supreme Court reached a similar conclusion. That state had two statutes, an Indigent Defense Act that provided a statutory entitlement to necessary services other than counsel and a Public Defender Act that funneled all funding through the public defender. Thus, there was no express statutory authority for the courts to order state payment for services other than counsel when a defendant was not represented by appointed counsel. The New Mexico Supreme Court held that courts had inherent authority to order such payment notwithstanding the lack of a clear statutory mechanism to do so. This inherent authority flowed from the court s obligation to protect indigent defendants statutory and constitutional right to the tools necessary for an adequate defense. See also, People v. Worthy, 109 Cal. App.3d 514, 521 (Cal. App. 1980) (although the legislature did not provide a means for payment for services other than counsel unless the defendant was represented by appointed counsel, courts have the inherent authority to provide an indigent defendant with services other than counsel to guarantee a fair trial); Arnold v. Higa, 600 P.2d 1383, 1385 (Haw. 1979) (while the statute contains provisions relating solely to defendants represented by public defenders or court appointed counsel the statutory language does not limit the court s authority to approve funds for services for a defendant represented by private counsel.); But see, Moore v. State, 889 A.2d 325 (Md. 2005) (the sole authority cited in the State s Brief that construes and approves the constitutionality of a state statute that conditions payment for services other than counsel on acceptance of appointed counsel). E. Differences Of Opinion Among Superior Court Justices As the attached affidavit of Attorney Leonard Harden demonstrates, services other than counsel are regularly approved in Grafton County for indigent defendants with retained counsel. Attached to Attorney Harden s affidavit are two (non-narrative) orders from 2013 approving 11

$550 for stenographic services in one retained case and $750 for forensic laboratory expert in another. Thus there is a difference of opinion among the Superior Court justices as to whether RSA Chapter 604-A permits an indigent defendant to obtain services other than counsel without also accepting appointed counsel. F. RSA Chapter 604-A Should Be Construed In Harmony With (A) The Federal Statutory Example (B) The Relevant ABA Standards, And (C) The Goal Of Promoting Pro Bono Representation RSA Chapter 604-A should be read in harmony with the federal statutory example for indigent defense funding. In federal court the Criminal Justice Act of 1964, 18 U.S.C. 3006A, governs both the appointment of counsel and the provision of services other than counsel. See,18 U.S.C. 3006A (e). The Criminal Justice Act, since its infancy, has been held to provide services other than counsel to indigent defendants regardless of whether counsel is appointed or retained. See, Christian v. United States, 398 F. 2d 517, 518 n.2 (10 th Cir. 1968). Indeed, the federal courts publish a policy that expressly permits the provision of services other than counsel to criminal defendants represented by retained counsel: Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. 3006A), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services. United States Administrative Office Of The Courts, Guide to Judiciary Policy, Vol. VII, Defender Services, 310.10 (a) (available at www.uscourts.gov). The New Hampshire statute should also be read in harmony with the American Bar Association Standards For Providing Defense Services. The ABA Standards recognize the need to permit private counsel to obtain ancillary defense services when representing indigent criminal defendants: 12

[A jurisdiction s] legal representation plan should provide for investigatory, expert, and other services necessary to quality legal representation. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense participation in every phase of the process. In addition, supporting services necessary for providing quality legal representation should be available to the clients of retained counsel who are financially unable to afford necessary supporting services. ABA Standards for Criminal Justice, Providing Defense Services, 3d. Ed., Standard 5 1.4 (Emphasis added.) Finally, RSA Chapter 604-A should be construed to promote pro bono representation. While no state can meet its obligations under the Sixth Amendment through voluntary pro bono contributions by the bar, such contributions are to be encouraged. See, N.H. Rule Prof. C. 6.1. A large portion of the criminal defense bar is made up of former public defenders and prosecutors who retain a strong commitment to public service and to the integrity of the criminal justice system. It is no surprise, therefore, that these and other lawyers often represent criminal defendants pro bono or for a substantially reduced fee or long after any hope of collecting of their fee is abandoned. If RSA 604-A:6 is construed to prohibit payment for services other than counsel for indigent defendants represented by private counsel, it will discourage these voluntary efforts. While most lawyers can afford to donate their some of their time and expertise, few can afford to go out of pocket for the costs of psychiatric experts, toxicologists, multi-day transcripts and the like. Other courts have recognized this important consideration when construing their indigent defense statutes. For example, the New Mexico Supreme Court has opined that: We believe that pro bono representation should be encouraged and furthered wherever possible. Given the heavy workload of the (public defender) and the emphasis on pro bono service throughout the legal community, it would seem that any lawyer who wishes to take on pro bono cases should not be discouraged 13

solely because of lack of access to needed defense funds, such as expert witness fees. State v. Brown, 134 P.2d 753, 760 (N.M. 2006). The Vermont Supreme Court has likewise recognized that providing services other than counsel fosters sound fiscal and public policy, because a defendant would not be required to forgo pro bono counsel or self-representation simply to obtain associated services at the public expense. State v. Wool, 648 A.2d 655, 660 (Vt. 1994). G. Removing Constitutional Doubt The defendant and amicus New Hampshire Civil Liberties Union have addressed the Constitutional implications of the trial court s reading of RSA 604-A:6. No additional discussion is needed here. However, it does bear repeating the a basic principle of statutory construction that a legislative enactment will be construed to avoid conflict with constitutional rights wherever reasonably possible. State v. Ploof, 162 N.H. 609, 620 (2011), citing State v. Smagula, 117 N.H. 663, 666 (1977). In this case, a constitutional ruling can be avoided by construing RSA 604-A:6 so that it does not create a blanket prohibition on the provision of necessary services other than counsel to truly indigent criminal defendants who (a) appear through pro bono or reduced fee counsel, (b) appear through retained counsel or (c) choose to represent themselves. CONCLUSION The trial court s order denying the defendant s application for services other than counsel should be reversed and the case should be remanded for a determination of the defendant s indigency. The trial court should be free to inquire into the financial arrangements between the defendant and her retained counsel. 14

Respectfully Submitted, NEW HAMPSHIRE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, By Its Attorneys, Andrew R. Schulman, Esq. (NH Bar 2276) GETMAN, SCHULTHESS & STEERE, P.A. 1838 Elm Street Manchester, NH 03104 (603) 634-4300 (603) 626-3647 (fax) ASchulman@GSS-Lawyers.com Michael J. Iacopino, Esq. (NH Bar 1233) Brennan Caron Lenehan & Iacopino 85 Brook Street Manchester NH. 03104 (603) 668-8300 MIacopino@bclilaw.com CERTIFICATE OF SERVICE I, Andrew R. Schulman, hereby certify that I have served copies of this brief by email and first class mail to (a) Olivier Sakellarios, Esq., counsel for defendant, (b) Stephen D. Fuller, Esq., counsel for the State, and (c) Gilles Bissonette, counsel for amicus New Hampshire Civil Liberties Union on November 15, 2013. Andrew R. Schulman 15

ADDENDUM Affidavit of Attorney Leonard Harden, With Attachments 16