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Romney public-defender plan draws fire from lawyers

Constitutional issues raised

Governor Mitt Romney's plan to wrest control of the state public defender agency from the judicial branch drew fire yesterday from an array of legal specialists and law groups, several of whom said it could violate the state constitution and concentrate too much power in the executive branch.

The critics, who ranged from a Harvard law professor to the head of the state association of criminal defense lawyers, also said his threat to blackball court-appointed defense lawyers who refuse to take cases in a burgeoning pay dispute might run afoul of the US Constitution.

"If somebody passes that legislation, I assure you it will be attacked in court," said Andrew Good, president of the Massachusetts Association of Criminal Defense Lawyers, many of whose 700 members take court-appointed cases.

Angry that the dispute involving court-appointed lawyers led to the recent release of three alleged drug dealers in Hampden County, Romney filed legislation Wednesday that would give him oversight of the Committee for Public Counsel Services, which manages the roughly 2,500 private lawyers statewide who represent indigent defendants.

Assailing hundreds of private lawyers who have refused new cases unless pay significantly rises, Romney said his bill would force lawyers to choose between accepting new cases at rates recently hiked by lawmakers or being banned from doing such work in Massachusetts.

Yesterday, legal specialists and representatives of lawyers' groups predicted that the legislation would provoke legal challenges on several grounds if it won approval from the Democrat-controlled Legislature.

For one thing, the critics contend that the bill might violate the state constitution because it would move the committee, which represents criminal defendants, into the same branch of government as the State Police, the attorney general's office, and the 11 district attorneys, who bring charges against criminal defendants.

"It would make little sense to have a criminal justice system where the police who arrest a client, the prosecutors who charge them, and the defense lawyers required to represent them are part of the same branch of government," said Charles Ogletree, a professor at Harvard Law School. "It would be obvious to any client that there is, at a minimum, the appearance of a conflict."

Ogletree runs the school's Criminal Justice Institute, which helped file a friend-of-the-court brief in a lawsuit by the committee and the American Civil Liberties Union against the state over the situation in Hampden County. There, the shortage of lawyers has been especially acute.

In response, the Supreme Judicial Court recently ruled that defendants could not be jailed for more than seven days without a lawyer and that charges would be dismissed if they still had no lawyer after 45 days. That led to Monday's release of the three alleged drug dealers.

Good said Romney's plan would give a governor the power to shift resources from the public defender agency to prosecutors.

"The whole structure of the Massachusetts Constitution, in terms of separation of powers, is one that will not tolerate a single branch being able to control the funding for both the prosecution and defense in a criminal case," he said.

Michael Avery, who teaches constitutional law at Suffolk University Law School, was among several legal specialists who said Romney's threat of permanently barring court-appointed lawyers who refuse work could violate the US Constitution.

Court-appointed lawyers, he said, could argue that they are exercising their First Amendment rights by taking a stand against current pay rates and that Romney's threat infringes on those free speech rights.

Eric Fehrnstrom, Romney's communications director, declined to respond to that criticism but disputed that shifting the committee to the executive branch posed constitutional problems. He repeated the governor's statement that 21 other states allow the executive branch to oversee public defenders, adding, "We don't see any conflict of interest."

Fehrnstrom said that an hour-long meeting Wednesday night among the governor, William J. Leahy, chief counsel for the committee, former attorney general Robert Quinn, and other officials had prompted committee leaders to send an e-mail yesterday to court-appointed lawyers across the state urging them to take new cases.

In the e-mail, Leahy and Willie J. Davis, chairman of the committee, characterized the meeting with the governor as "unprecedented," said Romney "listened attentively," and said they looked forward to resuming negotiations next week at a gathering to which they will invite legislative leaders. In exchange for Romney's promise to continue negotiations, Leahy and Davis said, the agency was requesting court-appointed lawyers to accept new assignments.

Anthony J. Benedetti, general counsel for the committee, said his agency can only request that private court-appointed lawyers take new cases and cannot require them to do so.

Some lawyers say they have no intention of doing so unless pay greatly improves. The Legislature recently approved a $7.50 hourly increase but has yet to pass a supplemental spending bill to fund it, at a cost of about $20 million a year. Even with the increase, the pay scale -- $37.50 to $61.50 an hour, depending on the seriousness of the cases -- would still rank among the lowest in the country, according to the Spangenberg Group, a West Newton consulting firm.

"People are just saying they can't afford to do this work, and I decided that for myself nine months ago," said Debra Beard-Bader, a Boston defense lawyer who stopped taking court appointments because pay failed to keep pace with the rising costs of running her own office. "Indentured servitude went out some time ago because of another Republican," she added. 

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