XVI. LACK OF REVIEW PROCESS FOR ADVERSE ELIGIBILITY DETERMINATIONS

Notably absent in almost every jurisdiction is the availabiity of a formal process of review for those defendants deemed ineligible for appointed counsel. Review procedures that do exist are informal, ad hoc practices, with virtually no assurance of consistent and equitable application. Examples of the disparate, informal practices currently used in New York counties include: allowing defendants to ask the judge to review the adverse determination; requiring the defendant to consult with three private attorneys regarding cost of representation and allowing reconsideration of eligibility applications only if private counsel is not retained; authorizing administrative and judicial challenges by the public defense provider; review by the chief defender where the court makes the eligibility determination, and submission of additional financial documentation to support the application for appointed counsel (Appendix at 62-65).

In at least eight jurisdictions, the public defense provider makes the initial eligibility determination and then reviews his own decision should a defendant complain (Appendix at 62-65).

Not a single jurisdiction in New York State provides the formal appellate review process required by professional standards for the provision of defense services. When a party other than the court makes the eligibility determination, the judiciary should review all adverse decisions. ABA Standards for Criminal Justice, Providing Defense Services, 5-7.3 (1991); NSC on Defense Services, 1.6 (1976). Some standards go even further and require that where a decision of ineligibility is confirmed by the court, the defendant has the right to appellate review of that determination:

A decision of ineligibility which is affirmed by a judge should be reviewed by an expedited interlocutory appeal. The person should be informed of this right to appeal and if he desires to exercise it, the clerk of the court should perfect the appeal. The record on appeal should include all evidence presented to the court, on the issue of eligibility and the judge's findings of fact and conclusions of law denying eligibility.

NLADA National Study Commission on Defense Services, 1.6 (1976)

Provision of an appellate review process conducted by the judiciary is consistent with the inherent responsibility of the courts to insure proper appointment of counsel.