Patricia Geary Glenn #5280
1960 Sidewinder Dr. #213
PO Box 2866
Park City, Utah 84060
Telephone: (306) 699-0709
Facsimile: (435) 655-0089
Attorney for Defendant
IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR
SALT LAKE COUNTY, WEST JORDAN DEPARTMENT, STATE OF UTAH
STATE OF UTAH,Plaintiff,
v.
ANDRES ESMELKI TAVERAS,
Defendant. / MOTION FOR INDIGENT DEFENSE RESOURCES
Case No. 131400634
Judge Charlene Barlow
Defendant, Andres Esmelki Taveras, through counsel, Patricia Geary Glenn, moves the court to make a determination that he is indigent pursuant to the Indigent Defense Act, Utah Code 77-32- 202 (‘the statute) and that he is entitled to defense resources, namely, transcripts, at either county expense or to be afforded the same discounted cost of transcripts prepared by Salt Lake Legal Defenders Association (“LDA”) and/or to have the Salt Lake County District’s Attorney’s Office (“DA’s Office”) accept use of an uncertified transcript consistent with its agreement with LDA.
PROCEDURAL HISTORY AND INTRODUCTION
The Transcript Dilemma
This matter came before the court upon Defendant’s Motion to Suppress for an Evidentiary Hearing over the course of several days on September 5, 2013 and concluding on September 25, 2013. At the close of evidence, the court discussed a proposed briefing and oral argument schedule with the parties. Defense counsel informed the court that it was her understanding that a transcript of the preliminary hearing had been requested by prior private counsel and that a request would be made for the suppression hearing. The court set the briefing schedule - subject to receipt of the transcripts and instructed defense counsel to contact the court should there be a delay. Upon learning that no request for transcript or the suppression hearing had previously been made - defense counsel requested audio CD recordings of the three hearings.
Having incurred a week’s delay in receiving the CD’s - defense counsel contacted the court clerk, filed a Stipulated Motion for Extension of Time on October 18, 2013 and the court held a review to reset the briefing schedule on October 25, 2013. During that discussion - defense counsel informed the court that - in addition to the request for the CD’s not having been received initially - further delay was caused by counsel’s investigation into and unsuccessful efforts to find an acceptable process by which to produce a transcript - at a reasonable expense.
In particular - defense counsel explained that, in fact, prior privately retained counsel had not filed a request for the preliminary hearing transcript or for the evidentiary hearing as advised and agreed upon and that she did not have funds to pay for a court certified transcript estimated at roughly $1000.00- $1500.00. In response - Deputy District Attorney, Tommy Lopresto, described the procedure by which his office receives transcripts and also offered that the DA’s office has an agreement with LDA allowing that office to submit and cite to a non-certified transcript produced by their legal assistants - a procedure unavailable to defendants represented by privately retained counsel in criminal cases. The court suggested and offered - as an alternative - that defense counsel could listen to the audio CD’s and use a manual citation time -stamping method for purposes of the memorandum in support of the suppression motion and that the court would accept that method for purposes of proceeding.
Deputy DA Lopresto explained the time-stamp process as involving downloading the On the Record Player which displays a visual time while playing the recording. Having relied upon and had the benefit of court certified transcripts in the past - defense counsel did not have a clue exactly what the time-stamp method would entail. Nonetheless, in the interests of avoiding further delay - defense counsel agreed to that course of action and to submitting a memorandum by November 15, 2013 with oral argument set for December 23, 2013 to accommodate the State’s trial schedule.
In the course of that discussion - the parties informed the court - indirectly - that the case involved the unusual and challenging circumstances of the Defendant having initially retained another attorney for a considerable fee, provided written notice to terminate that agreement, made a request for the unearned portion of the total fee and an accounting - with that attorney having - to date - been entirely unresponsive - leaving present defense counsel providing the services without compensation and/or resources.
At the close of the review hearing and after the briefing schedule had been reset - Deputy DA Lopresto asked the court to put on the record the issue of present defense counsel’s lack of compensation and the situation relative to the other attorney - to the extent it may raise issues of ineffective assistance of counsel and invite such claims by Defendant. Specifically- Deputy DA Lopresto argued that the right to counsel includes the right to effective representation - therefore defense counsel’s lack of compensation (and presumably funds) could provide a basis for future collateral attack or appeal by Defendant.
Though he didn’t articulate precisely which rights would be affected by defense counsel’s lack of compensation - Deputy DA Lopresto did correctly refer to the Sixth Amendment right to effective assistance of counsel as encompassing a “bundle” of rights - beyond defense counsel’s standard of performance in the representation. Defense counsel advised the court that the retained attorney’s failure to return the funds would run its course through the appropriate channels such as the Utah State Bar and the judicial system and - in the meantime - the lack of compensation would not affect counsel’s performance. The court agreed that there had been no indication of inadequate representation by defense counsel to date, it was not inclined to address the issue of lack of compensation in the context of the suppression motion, and made a finding on the record accordingly.
Following the review - in an effort to comply with the court’s instructions - defense counsel engaged in the time-stamping, time-consuming process, suggested in lieu of a transcript. It is simply an unacceptable process producing an inferior, sub-standard, and unprofessional product which violates Defendant’s Sixth Amendment right to counsel and Equal Protection and Substantive Due Process guaranteed by the Fourteenth Amendment.
Utah’s Indigent Defense Act (“the statute”) governs those instances such as this where an indigent defendant is represented by private counsel but does not have the resources for effective representation. The sorted circumstances surrounding Defendant’s previous private attorney are not relevant and are offered only to the extent Deputy DA Lopresto raised them in connection with his ineffective assistance of counsel concerns and in so far as this motion clearly is not the sort contemplated by the County to offend policy objectives the statute is designed to prevent- namely, private attorneys seeking to have the County pick up their costs. The statute doesn’t require or seek an explanation for how a defendant ran out of money or why he doesn’t have the funds to pay for the resources necessary to his defense but does require review of the written defense contract - to which present defense counsel is not a party. The facts leading to Defendant’s current indigency and his unfortunate experience with retaining private counsel also bear directly on what the statute does mandate - good faith representations not calculated to avoid the statute’s requirements to qualify for the court’s order providing resources.
This motion seeks those resources pursuant to the statute subject to a determination of indigency by the court. Because Defendant is in custody (and in agreement with Deputy District Attorney, Adam Miller) the standard Affidavit of Indigency will be submitted at the hearing on this motion in addition to the inquiry required by the statute. Defendant submits this motion in summary form, requests an expedited hearing date, and opportunity to brief the issues further following Salt Lake County’s response.
FACTS
Defendant, Andres Taveras, is facing two second degree felony drug distribution counts and miscellaneous misdemeanor charges in connection with a traffic stop and search of the car he was driving in West Jordan. The circumstances surrounding the Wall stop - as it’s called in narcotics parlance - raises numerous viable issues set forth in a motion to suppress which were developed by his present private counsel over the course of both the preliminary hearing (to a limited extent) and in an evidentiary hearing held on several separate dates. Following his arrest on May 9, 2013 - Defendant’s family - of modest means - refinanced their car to raise funds used to retain a private attorney. Prior to a formal fee agreement between the parties - Defendant’s brother provided cash to the private attorney’s Salt Lake office manager who appeared in court on Defendant’s first appearance and who then brokered and drafted a written fee agreement between the attorney and brother on behalf of Defendant who was - and still remains - in custody. (“Agreement for Legal Services”, dated June 24, 2013 available for court in camera review). The private attorney failed to show at several scheduled court hearings but did file a Notice of Appearance and Request for Discovery and made two initial appearances continuing the matter.
Present defense counsel came into the case in July 2013 by way of a Park City office sharing arrangement with prior private counsel that included covering court appearances for a nominal fee and stipend. Prior counsel abandoned the Park City office in favor of his Salt Lake office at the end of July and that arrangement ended effective September 1, 2013 with an agreement to continue on this case as co-counsel with a split-fee due on September 15, 2013 - which was not paid. (Correspondence available for in camera court review). To date - present defense counsel has handled the preliminary hearing and made all appearances since Defendant was bound over - including filing the motion to suppress, the evidentiary hearing that followed, and numerous appearances on the Order to Show Cause in connection with the prior misdemeanor offense - and basis for holding Defendant in custody ($25,000.00 cash-only bail).
On September 18, 2013, Defendant terminated the representation agreement with the private attorney by written notice requesting an accounting and return of the unearned portion of the sizable fee. (“Notice to Terminate Agreement for Legal Services,” dated September 18, 2013, available for court in camera review). Despite Defendant’s request - the private attorney has not responded to the written notice or to all attempts to engage on the subject. Instead - on September 20, 2013 - the private attorney’s office manager responded by text in a correspondence containing no substance. (Text dated September 20, 2013, available for court in camera review). Defendant has been incarcerated since May, has no income, and his family has no funds for his defense.
Order for Provision of Defense Resources
Under the statute - upon deeming a defendant indigent when he is represented by privately retained counsel - the court shall order the county to coordinate providing defense resources as appropriate subject to the requirements set forth in §77-32-303. Utah Code Ann. §77-32-202. The court must conduct a hearing with proper notice to the county clerk and prosecutor and an in camera review of the defense contract, a full accounting of the defense retainer, anticipated costs of defense resources and other relevant defense records and find by clear and convincing evidence that: the defendant would be prejudiced by the substitution of LDA which can’t be remedied by a continuance or other alternative means; at the time private counsel was retained there was a written contract which provided the defendant had the means to pay for fees and defense resources; there has been an unforeseen change in circumstances which requires defense resources beyond the defendant’s ability to pay; and that all of the above representations are made in good faith and not calculated to allow the defendant or defense attorney to avoid the requirements of this section of the statute. §77-32-303(3) (b)(i-iv).
This case is on all fours under the requirements of even this newly amended version of the statute designed to gut the Utah Supreme Court’s decision in State v. Parduhn, 2011 UT 55. The court, in Parduhn, held that the Utah Indigent Defense Act requires local governments to provide indigent defendants with funding for necessary defense resources even when the defendant is represented by private counsel without showing a compelling reason. Id. Immediately following that decision - the statute was amended along the lines of Microsoft’s bundling of Windows with its Internet Explorer browser-consumers can’t get one without the other. To the extent Parduhn allowed indigent criminal clients to access defense resources ala carte - the new amendments eliminated that option in favor of imposing a full menu. In other words - the amendments now allow precisely what Parduhn prohibited - conditioning the availability of funding for indigent defense resources on a defendant’s representation by public counsel. If a county has contracted for a defense services provider - the court can’t order that entity to provide defense resources to indigent defendants represented by private counsel without going through the procedure outlined in section 303(b) of the statute. Consequently - the statute has produced considerable controversy and inevitable appeals over the constitutionality of the amendments - arguments which will await another day for the Utah Supreme Court to review unless Salt Lake County comes to its senses - in the interim - like Microsoft did when it settled the anti-trust suit brought by the United States Department of Justice.