Involuntary Servitude In The Virgin Islands

The Virgin Islands Supreme Court has held that the Superior Court system of appointing counsel violates the governing statute.

Two members of the Virgin Islands Bar—Justin K. Holcombe, Esq., and Robert L. King, Esq.—appeal from Superior Court orders which appointed them to serve involuntarily as counsel to indigent criminal defendants. In the alternative, the attorneys also seek writs of mandamus and prohibition against the judges who issued the orders, the Honorable Adam G. Christian and the Honorable Denise M. Francois (collectively the “Nominal Respondents”). For the reasons that follow, we accept jurisdiction, vacate the respective appointment orders, and direct the Superior Court to appoint counsel for indigent defendants in a manner that complies with Virgin Islands law by March 1, 2016, failing which this Court may exercise its statutory and inherent powers to establish procedures for appointment of counsel to ensure that members of the Virgin Islands Bar are not systematically conscripted to provide indigent defense in violation of Virgin Islands statutory law.

The court concluded that the orders of appointment in the two unrelated matters were appealable and not moot.

On the merits

Under these circumstances, we conclude that King and Holcombe’s requests for writs of mandamus and prohibition are justiciable if construed as a request for supervisory writs of mandamus and prohibition. Clearly, Holcombe and King raise an important issue of first impression that impacts all criminal cases in the Territory involving indigent defendants. Moreover, Holcombe and King allege that the appointment process utilized by the Superior Court violates the procedure codified by the Virgin Islands Legislature in 5 V.I.C. § 3503(a), and is thus tantamount to a usurpation of power.

The court discusses the appointment power in the Virgin Islands and finds that the procedures here failed to meet statutory requirements

We agree with Holcombe, King, and the Bar Association that the phrase “panel of private attorneys” cannot encompass every private-sector member of the Virgin Islands Bar, even with limited exceptions for members of the Commission of Bar Examiners and the Board on Professional Responsibility.  The word “panel,” by its very nature, contemplates a smaller subset of a larger group.

A hopeful note

We are confident that, going forward, the Virgin Islands will join virtually every other United States jurisdiction in permitting the indigent defense function to be performed by qualified volunteers, whether they be attorneys employed by the Office of the Territorial Public Defender or private attorneys who have willingly joined a panel. We recognize, however, that given the high volume of criminal cases involving indigent criminal defendants, it may not be possible for the Superior Court to transition immediately from the current system of involuntary appointments to a voluntary system. In addition to actually creating a panel—which would necessarily include publicizing its existence and establishing a process for accepting applications—other ancillary issues would also need to be addressed. For example, in its amicus curiae brief, the Bar Association notes that the Virgin Islands Judiciary will need to consider (1) the minimum experience, if any, that should be a prerequisite to joining the panel; (2) whether to establish one panel or tiered panels based on the seriousness of the offense; (3) the rate of pay for the attorneys who have volunteered to accept appointed cases from the panel; and (4) how to proceed in the event the number of attorneys who join the panel is insufficient to provide services to all indigent defendants…

Because the Superior Court’s practice of appointing  private attorneys from a list of all members of the Virgin Islands Bar to serve involuntarily as criminal defense counsel violates this statute, we vacate the Superior Court’s December 30, 2014 and July 9, 2015 appointment orders, but shall stay enforcement of our decision until March 1, 2016, with respect to all attorneys—other than Holcombe and King—who are otherwise not exempt from appointments under the Superior Court’s current practices, so that the Superior Court may establish and maintain a panel of attorney volunteers in compliance with section 3503(a). If the Superior Court fails to do so prior to this deadline, this Court shall consider the request of Holcombe, King, and the Bar Association to establish procedures in the first instance ensuring that the appointment process in the Superior Court complies with Virgin Islands law.

The court thus vacated the appointments in both cases (Mike Frisch)