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The right to counsel in Guam
The Organic Act of Guam guarantees that: “In all criminal prosecutions the accused shall have the right . . . to have the assistance of counsel for his defense.” It also requires that the Sixth Amendment of the United States Constitution and “the second sentence of section 1 of the” Fourteenth Amendment apply in Guam and “shall have the same force and effect there as in the United States or in any State of the United States.”
All crimes in Guam are either a felony, misdemeanor, or petty misdemeanor, and they all carry possible imprisonment as a sentence upon conviction. Guam guarantees by statute that: “In any criminal action, the defendant is entitled . . . [t]o defend in person and with counsel. Every defendant accused of a crime who is financially unable to employ counsel shall be entitled to have counsel assigned at public expense to represent him at every stage of the proceedings from his initial appearance before the court through appeal, unless he waives such appointment.” Guam’s court rules make clear that this guarantee applies to both adults and children.
Though neither the Organic Act nor the U.S. Constitution require it, Guam also statutorily requires courts to appoint counsel in certain involuntary mental health proceedings and allows the courts to appoint counsel for those financially unable to obtain representation in certain other circumstances, such as to the elderly, in domestic violence situations, and in some land claims.
How the right to counsel is administered and structured
The entire indigent representation system in Guam is structured and administered island-wide, but through the interactions of several different oversight bodies, all within the judicial branch of Guam government.
The Judicial Council is created by statute as a policy-making and administrative body for the judicial branch of Guam. The Judicial Council is responsible for, among other things: establishing court filing fees and other court fees that are used in part to fund the costs of indigent representation; and overseeing and administering the “Judicial Client Services Fund” out of which some expenses for some indigent defendants are paid. The council has five members: all three full-time Supreme Court justices, with the Chief Justice as chairperson; and two Superior Court judges, including the Presiding Judge and one other judge appointed by the Presiding Judge for a three-year term.
The Board of Trustees for the Public Defender Service Corporation (PDSC) is established by the legislature and oversees all aspects of the PDSC public corporation (i.e., all aspects of the provision of counsel except that representation provided by private attorneys). The board has five members: the Chief Justice of the Guam Supreme Court, who is the chairman; the Presiding Judge of the Guam Superior Court, who is the vice-chairman; the President of the Guam Bar Association; and two members appointed by the Chief Justice for a three-year term (who cannot be the Attorney General or member of the AG’s staff and cannot be employees of the PDSC).
The Standing Committee is created by court rule to oversee the provision of private attorneys, known as the Private Attorney Panel (PAP), to represent indigent people in conflict situations. The Standing Committee is made up of five voting members and three non-voting members. The five voting members are attorneys: the PDSC Public Defender, as a permanent member; and four members appointed by the Chief Justice of the Guam Supreme Court to two-year terms. The three non-voting members are: the clerks of the Superior and Supreme Courts; and the Chair of the Judiciary’s Subcommittee on Indigent Defense.
How the right to counsel is funded
Funding for the right to appointed counsel in Guam comes from three sources: annual appropriations by the Guam legislature (by far, the primary source of funding); certain fines and fees assessed and collected by the courts; and intermittent use-specific U.S. federal grants.
The Guam legislature appropriates funds annually to: the PDSC, for its operations and that of all of its divisions (including the Alternate Public Defender); and the judicial branch, with a portion of that funding used for the compensation of appointed private attorneys and for the case-related expenses of indigent defendants when authorized by any justice or judge. Appropriated funds unspent at the end of the fiscal year, referred to as “lapsed funds,” are retained by the body to which they were appropriated. The legislature also appropriates funds for certain specific indigent representation uses when required to do so by U.S. federal grants.
The judicial branch has a “Judicial Client Services Fund” that, in addition to possible legislative appropriations, receives revenues from certain fines and fees collected by the courts. The fund is used in part for the compensation of appointed private attorneys and for the case-related expenses of indigent defendants when authorized by any justice or judge.
Occasionally there are one or more U.S. federal grants that provide some amount of funding used by some aspect of the indigent representation system for a specific purpose authorized under the federal grant.
The methods used to provide public counsel
By statute, Guam provides that all people who have a right to appointed counsel are represented by either attorneys employed in the Public Defender Service Corporation (PDSC) or, when the PDSC has a conflict, private attorneys available for case-by-case appointments. Today, there are three components through which attorneys are appointed to represent adult and juvenile indigent defendants charged with crimes: the Public Defender Service Corporation; the Alternate Public Defender; and the Private Attorney Panel.
The Public Defender Service Corporation (PDSC) is a public (governmental) corporation established by the legislature within the judicial branch of Guam government, and its attorneys are appointed in all cases in which it does not have a conflict of interest. The PDSC is headed by the Public Defender, who is appointed by the board of directors of the PDSC. Guam has had a governmental public defender since 1967, but the PDSC was established by the legislature as a public corporation in 1975. All employees of the PDSC work out of a single office located near the Hagatna Judicial Center, which is the primary location of the Superior Court trial court.
The Alternate Public Defender (APD) is a division of the PDSC. It was established in 2004 by an agreement between the Judicial Council and the PDSC board, and its attorneys are appointed in cases in which the PDSC has a conflict of interest and the APD does not. The APD is located in an office at a different location than that of the PDSC, but also relatively near to the Hagatna Judicial Center.
In cases where both the PDSC and the APD have a conflict of interest, a private attorney is appointed by the court from a list of attorneys known as the Private Attorney Panel (PAP). Guam statutes require that a private attorney be appointed whenever the PDSC has a conflict of interest, and court rules provide for how those private attorneys are selected and appointed.
Organic Act of Guam, 48 U.S.C. §§ 1421b(g), (u)
Guam Code Annotated, tit. 7, div. 1, ch. 5 (judicial council), and tit. 7, div. 1, ch. 9.6 (judicial client services fund), and tit. 8 (criminal procedure), and tit. 9. chs. 1, 80 (definitions of and sentences for crimes), and tit. 12, ch. 11 (public defender service corporation)
Guam Superior Court Local Rules, Miscellaneous Rules 1.1. (requirement to appoint counsel and private attorney panel)
Source of data: original research conducted by Sixth Amendment Center staff.