Appointment of counsel for indigent defendants

Pursuant to the judge’s consent, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for a pattern of failing to consider the legal standard for appointing the public defender for misdemeanor defendantsBourne, Letter of censure (Arkansas Judicial Discipline & Disability Commission August 1, 2022)The Commission acknowledged that the decision to appoint counsel is a legal determination and that a judge could incorrectly decide the issue without violating the code of judicial conduct.  However, it concluded that the judge’s pattern of failing to appoint counsel, his disregard for the proper procedure, and his failure to consider the legal standard “pushe[d] his legal error into the realm of judicial misconduct.”

For years, the judge rarely approved affidavits of indigency submitted by defendants.  The affidavits were not kept as a public record and were destroyed.  The Commission found that the judge “often discouraged defendants from seeking appointments, telling them they would ‘probably not’ qualify before even reviewing all of the factors and the affidavit.”  “Instead of conducting a proper review,” “he would frequently just respond with, ‘I am not going to appoint a lawyer for you.  Get a job.’”

The Commission noted that, as part of an extensive news report by a TV station, many citizens told an investigative reporter that they had been denied appointed counsel on misdemeanor charges in the judge’s court, and in an on-camera interview, the head of the state’s Public Defender Commission agreed that affidavits from defendants in the judge’s court showed counsel had not been appointed for defendants who qualified.  See, “Working 4 You:  Public defender Denied in court, records reveal only 48 cases in nine years” (October 28, 2021).

In a separate proceeding, based on the Commission recommendation and the judge’s agreement, the Arkansas Supreme Court suspended the same judge for 90 days without pay for a pattern of injudicious conduct toward defendants; the Court held 75 days of the suspension in abeyance subject to the judge’s compliance with conditions and ordered that he never again hold judicial office after his current term ends.  Judicial Discipline & Disability Commission v. Bourne, Per curiam (August 9, 2022).

In a petition in December 2022, based on 5 complaints about his conduct after he returned from his suspension, the Commission alleged that the judge had violated his agreement in the prior discipline case.  The judge resigned, and the Commission dismissed the complaints.   See, “Pope County judge accused of improper behavior announces retirement after facing more complaints” (January 3, 2023).

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Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 14 days without pay for denying appointment of counsel to defendants without making the necessary review of their indigent status.  In re Ruttle, Agreed order of suspension (Kentucky Judicial Conduct Commission March 1, 2023).

The order names 1 specific case in which the judge denied appointment of counsel at a defendant’s initial court appearances in 2021 without determining whether the defendant was indigent as required by statute.  The Commission found that a review of the judge’s felony arraignments revealed that this was “not an isolated incident.”

In 2021, based on an agreement, the Commission had suspended the same judge for 7 days without pay for (1) requiring criminal defendants to file written demands for jury trials; (2) making impatient, undignified, and discourteous comments to attorneys from the state public defenders agency; and (3) in a proceeding with an unrepresented defendant, suggesting a plea agreement that could reasonably be perceived as coercive.  In re Ruttle, Agreed order of suspension (Kentucky Judicial Conduct Commission April 7, 2021).

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