North Carolina’s independence issue exposed

November 13, 2014


David Carroll


Pleading The Sixth


Pleading the Sixth: Not all statewide commissions are equal. For many years, the North Carolina Commission for Indigent Defense Services has been upheld as an example of how best to create a statewide public defender commission. After all, when it comes to the size, composition and diversity of the Commission itself, for the most part, the National Study Committee’s “Guidelines for Legal Defense Services in the United States” are met. But, as a recent story out of Winston-Salem demonstrates, statewide commissions have only limited impact if their oversight authority is undercut by judicial and political interference at both the local and state levels.

On November 11, 2014, North Carolina Superior Court Judge William Wood appointed a new public defender for the 21st District (Forsythe County) out of fear that the level of representation could “deteriorate” if the former chief public defender continued in the position, as first reported in the Winston-Salem Journal. The Sixth Amendment Center takes no position on whether that is true and, in fact, takes the judge at his word. However, the fact that an elected judge has the authority to make that decision highlights the independence issues that still plague the right to counsel in North Carolina. Let us explain.

National Standards on Independent Commissions

Commentary to the first of the American Bar Association Ten Principles of a Public Defense Delivery System requiring the independence of the defense function states that “a nonpartisan board should oversee defender, assigned counsel, or contract systems,” and references the National Study Committee’s Guidelines for Legal Defense Services in the United States. The Guidelines, developed under a grant from the U.S. Department of Justice, give specific parameters to which all such commissions must adhere to ensure the independence of defender services. When the North Carolina Commission for Indigent Defense Services was created in August 2000, the legislation was hailed as the first of its kind to follow closely the Guidelines in regard to how to create a statewide public defender commission.

For example, Guideline 2.10 states that a commission should “consist of from nine to thirteen members” depending on a jurisdiction’s size, and other factors. The North Carolina IDS Commission has thirteen members. Guideline 2.10(b)(c) & (d) requires the individual appointments to public defense commissions to come from diverse appointing authorities to avoid political interference. So, no single branch of government can have a majority of appointments, and organizations representing the defendant community should also be represented on the commission. The final two subsections of the same Guideline require the majority of appointees to be attorneys while barring sitting judges, prosecutors and law enforcement.

NC Gen Stat. § 7A-498.4 meets most of these of these requirements. The Chief Justice, the Governor, Senate President and Speaker of the House all get one appointment each. The North Carolina Public Defenders Association, the North Carolina State Bar, North Carolina Bar Association, the North Carolina Academy of Trial Lawyers, the North Carolina Association of Black Lawyers, and the North Carolina Association of Women Lawyers also get one appointment apiece. The Commission itself also selects three members from various geographic regions (one of whom must be Native American). The same statute affirmatively states that no “active prosecutors or law enforcement officials, or active employees of such persons, may be appointed to or serve on the Commission.” Similar language prohibits, for the most part, sitting judges from serving on the Commission (that is, all appointing authorities may not appoint a sitting judge, with the exception of the Chief Justice who may appoint a sitting judge).

Though an independent commission is a prerequisite to a functioning indigent defense system, it is not the only thing that matters

The effectiveness of any oversight commission structure comes down to two things: the commission’s independence, and its administrative authority to set and enforce policy at the local levels. And this makes sense, because what use would the former be without the latter? North Carolina’s system achieves the independence of the oversight commission, but misses the mark on giving that commission full oversight authority. In short, despite its adherence to the Guidelines, the North Carolina IDS Commission is simply not in control of its own system.

This is difficult to see at first glance. After all, the North Carolina IDS Commission has the statutory power to promulgate a wide variety of standards regulating the delivery of right to counsel services, including: attorney qualification standards (ABA Principle 6); training standards (Principles 6 & 9); caseload standards (Principle 5); and performance standards (Principle 10). However, N.C. Gen Stat. § 7A-498.5(e) does not give the IDS Commission the sole authority to decide how services are to be delivered locally. Instead, such decisions are subject to the approval of the local bar association, the local judiciary, the state legislature, and the governor.

So, let’s say IDS staff has data showing that, in a certain district, it would be more effective and cost efficient to move toward the traditional public defender office model to provide direct services, and away from the assigned counsel model. Before acting on the recommendation, the IDS Commission first must consult with the local bar association and the presiding judge of that district. In states with elected judiciaries (as is the case in North Carolina), it is often the true that local bar associations and judges favor assigned counsel systems because judges can use appointments as a means of incurring campaign contributions from lawyers. (For example, a 2000 study commissioned by the State Bar of Texas reports that “[n]early four in ten (39.5 percent) judges indicate that their peers occasionally appoint an attorney because he or she is a friend, while roughly one-third of judges sometimes consider whether the attorney is a political supporter (35.1 percent) or has contributed to their campaign (30.3 percent).”) In return, lawyers know they will always get paying assignments if they contribute to a judge’s campaign. This is especially true in states (again, as is the case with North Carolina) where local judges control the appointment process but the payment comes from the state – no one locally is supervising the voucher process. (The 6AC reported on this same dynamic in the provision of adult conflict and juvenile delinquency representation in Tennessee.)

The local bar association’s and judge’s written comments on proposed changes to the local structure are required legislatively to be forwarded, along with the IDS Commission’s recommendation, to the members of the General Assembly that represent the district (who themselves, in fact, may be soliciting campaign contributions from the local bar). If the IDS Commission recommendation somehow manages to survive those hurdles, it still takes the legislature approving, and the Governor signing, legislation to change a system from an assigned counsel system to a public defender office. Is it any surprise that, to date, only 16 district defender offices (representing only 24 of the state’s 100 counties) have been approved?
Yet even that does not end the political and judicial interference. If a public defender office is approved, N.C. Gen Stat.§ 7A-498.7 requires the local judge to appoint a public defender from a list of names submitted by the local bar – not the IDS Commission.

As a 2007 State Auditor report makes clear, North Carolina public defenders and private assigned counsel are “not sufficiently independent of judicial influence because judges perform managerial functions, such as appointing public defenders to office, assigning cases to attorneys, establishing attorney rosters, and approving attorney fee payment applications.” This results in a situation where “attorneys may be more concerned with maintaining the goodwill of the judge and obtaining future assignments than with ensuring that a proper defense is provided to their indigent clients.” That, coupled with the political hurdles needed to change an assigned counsel system to a public defender office, makes the Commission’s standards difficult to enforce.

To be fair, the North Carolina IDS Commission and staff have been aware of these issues even prior to the State Auditor report and have been fighting for increased authority since almost day one. In a series of reports (here, here, here, here, and here), the IDS Commission has highlighted the cost efficiencies that can be had by increased expansion of public defender offices. Further still, in its 2011 report to the legislature, the Commission noted its lack of supervisory authority over the local defender systems has left it with little ability to ensure that minimum standards are met. But rather than giving the IDS Commission more authority, the legislature instead statutorily required the IDS Commission to begin moving from assigned counsel models to a contract model. And, though this model may result in better quality and cost efficiencies in the long run (these are not like the flat fee contracts that plague many defender systems across the country), it is because the IDS Commission is making the best of something that was politically imposed on them.


So, perhaps the Winston-Salem judge is correct about needing a different public defender to lead the local offices. However, the other side of the coin is that, according to the Winston-Salem Journal, the prior defender believes there was an “orchestrated campaign” by the local bar to get rid of him. The problem is that the taxpayers and defendant community can never be sure, until the politics and undue judicial influence are removed and the IDS Commission is given full regulatory authority over right to counsel services.