Constitutional Law

Top Minn. Court Says Public Defender Erred By 'Advocating' Forfeiture of Client's Right to Counsel


Clearly, Jeffrey Arthur Krause did not get along with his appointed assistant Minnesota public defender.

In an affidavit, the lawyer said he was fearful for his safety, after Krause made threatening comments to him. Krause denied that in a letter, but it wasn’t allowed into evidence during a hearing on Krause’s right to counsel. When he was allowed to speak, after being warned by the judge that anything he said could be used against him, Krause replied, “What can I tell you? The guy’s a jerk.”

The upshot was that Krause wound up representing himself at his Otter Tail County criminal trial and was convicted in the controlled-substance and ineligible person firearm possession case. But in a Wednesday opinion (PDF), the state’s top court gave him another chance to argue that there was no basis for denial of his right to counsel at the March 2010 criminal trial, and, if he succeeds, a reversal of his criminal conviction.

Because the public defender’s office sought a forfeiture of Krause’s right to counsel, and thus advocated against its own client, his due-process rights were violated at a Dec. 2009 evidentiary hearing on the forfeiture motion, ruled the Minnesota Supreme Court. Its 24-page opinion details the facts of the case and offers guidance about appropriate procedure and the type of defendant misconduct concerning his attorney that could justify a finding that he has violated his right to counsel.

Pointing out that lawyers have ethical duties to zealously advocate for their clients and keep information related to the representation confidential, the court explains in a lengthy footnote that “(b)y making a motion for forfeiture of counsel in the manner he did, the Chief Public Defender, acting on behalf of the Office of the Public Defender, failed to ‘zealously’ advocate for Krause, took a position that was adverse to Krause’s interests, and disclosed confidential information.”

Instead of proceeding in this manner, the supreme court writes, “Defense counsel, faced with circumstances that prohibit continued services as counsel for the defendant, should seek the court’s approval to withdraw from the litigation, without disclosing the underlying reasons. If the court requests an explanation for the withdrawal, ‘(t)he lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.’ Minn. R. Prof. Conduct 1.16, cmt. 3. In this manner, defense attorneys can fulfill ‘their obligations to both clients and the court under Rules 1.6 and 3.3.’ Id. What should not be done is what was done here, in other words, advocating that the client of the Office of the Public Defender should not have counsel provided at public expense.”

The court also said that Krause is entitled to the appointment of special counsel unaffiliated with the public defender’s office to represent him at a new evidentiary hearing on the public defender’s claims that he forfeited his right to counsel.

The supreme court’s opinion was not a clear win for Krause, however, who had sought an outright reversal of his conviction because his right to counsel was violated.

Additionally, the court, while not reaching the merits of the right-to-counsel issue, offered future guidance by discussing the type of conduct that could warrant a forfeiture of the right to counsel.

Prior case law in Minnesota has upheld a forfeiture when a defendant physically attacked his lawyer, and other jurisdictions have done so due to a defendant’s threats to kill counsel or a pattern of threatening and abusive behavior, the court notes. “(W)e conclude that credible threats to harm an attorney or an attorney’s family may constitute ‘extremely serious misconduct’ warranting forfeiture of the right to counsel.”

Hat tip: Legal Profession Blog

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