The Power Of The Public Defender

The Idaho Supreme Court granted the appeal of the State Appellate Public Defender who asserted the authority to appoint a Pennsylvania Federal Public Defender as successor counsel and removed the judge who “ardently” had opposed the action

The Idaho State Appellate Public Defender has filed a direct action with this Court seeking to invoke our original jurisdiction so that a writ of mandamus may issue against the Fourth Judicial District of the State of Idaho and Cheri C. Copsey, Senior District Judge. Judge Copsey is the presiding judge in Abdullah v. State, No. CV-01-22-9520 (Idaho Dist. Ct. Ada County 2022), a post-conviction proceeding in Ada County. When Eric Don Fredericksen, the Idaho State Appellate Public Defender (the “SAPD”), concluded that a conflict of interest precluded him from continuing to represent Azad Abdullah (“Abdullah”), he attempted to furnish a new attorney for Abdullah from the Federal Defender’s Office in Pennsylvania. The new attorney, Eric Montroy, had been previously appointed to represent Abdullah in his habeas corpus proceeding in federal court. Judge Copsey refused to appoint Montroy, maintaining that he also had a conflict of interest, and stated that she would not appoint an out-of-state attorney. She then removed the SAPD from the case and appointed a new attorney of her own choosing.

Relying on Idaho Code section 19-5906, the SAPD asserts that the Idaho Code “unambiguously vests the SAPD with the duty and authority to arrange for counsel for indigent clients” due to a conflict of interest or for any other reason. The SAPD asks this Court to issue a writ of mandamus to Judge Copsey and the Fourth Judicial District of the State of Idaho to remedy what it views as an infringement of his statutory grant of authority. Additionally, he asks us to issue a writ of mandamus to the Fourth Judicial District for the removal of Judge Copsey as the presiding judge over Abdullah’s postconviction action. The Fourth Judicial District and Judge Copsey (“Respondents”) oppose the petition.

The Ada County Prosecutor (“the ACP”) moved to intervene in this action, which was conditionally granted by this Court. The ACP opposes the petition for writ of mandamus, arguing that the SAPD does not have standing to bring this action and that Judge Copsey should remain as the presiding judge in the post-conviction proceeding  before the district court.

For the reasons stated below, we conclude that the SAPD (1) has properly invoked our original jurisdiction under the Idaho Constitution, and (2) is entitled to the extraordinary relief he is seeking.

Standing and injury

Here, the alleged injury is the obstruction of the SAPD’s statutory duty to arrange for conflict counsel. The conduct complained of was the district court’s order, which allegedly disregarded the SAPD’s role in arranging for conflict counsel and appointed an attorney of its own choosing. If the SAPD’s alleged injury is valid, then it was directly caused by the court’s order. Thus, there is a clear causal connection that satisfies the second prong of the standing analysis.

Power of the public defender

we conclude that the proper interpretation of the statute, as we suggested in Hall, is that the SAPD has the duty to arrange for substitute counsel who shall be compensated out of the SAPD’s budget. Having concluded that the SAPD has both the authority and the duty under Idaho Code section 19-5906 to arrange for substitute counsel, the record is clear that the district court obstructed that duty by not allowing the SAPD to proceed with its substitution. Instead, it prohibited the SAPD from arranging for new counsel of its choice by removing the SAPD from the case and appointing new lead counsel of its own choosing. Therefore, we find that the district court obstructed the exercise of the SAPD’s statutory duty and authority under Idaho Code section 19-5906. Instead of selecting new counsel of its own choosing, the district court should have permitted the substitution and then addressed any conflict-of-interest concerns with the newly substituted counsel of record.

Eligibility of a pro hac vice attorney

Since an attorney admitted pro hac vice can practice as a licensed member of the Idaho Bar in a specific case, it follows that such an attorney can be deemed “licensed” as it pertains to that specific case. Importantly, if a qualified out-of-state attorney can be substituted to represent a nonindigent defendant in a capital case, there is no compelling reason why an indigent defendant should not have the same opportunity, if circumstances warrant. Aside from competency requirements, Idaho Code section 19-855 only requires that an attorney be “licensed to practice law in this state[.]” We see no reason to depart from this common procedure in the Idaho courts. Indeed, it does not appear that this practice has ever been questioned before. Thus, we hold that a competent, out-of-state attorney who has been properly admitted pro hac vice may be substituted to represent an indigent defendant in a criminal case as a temporarily licensed member of the State Bar of Idaho.

Recusal

The record discloses that Judge Copsey, by her own statements, ascribed bad motives to the SAPD, openly questioned the ethics of the SAPD in exercising his duties as a state official, and ardently expressed her position on rulings she would have to now revisit in light of this Court’s decision. Judge Copsey made it clear that she believed that the SAPD was acting in his own interest by seeking the appointment of Montroy…

The clear inference from Judge Copsey’s statements is that she believes there is some form of collusion between the SAPD and Montroy. By making such a suggestion, Judge Copsey has personally called into question the ethics and integrity of both the SAPD and Montroy without any factual basis for doing so. Therefore, we must unavoidably conclude that she has shown demonstrable bias against Abdullah’s current and potential future counsel.

(Mike Frisch)