Conviction Of Public Defender Affirmed

The Utah Supreme Court affirmed the theft and attempt theft conviction of a public defender

Garfield County does not have a full-time public defender. Instead it retains a private attorney to handle all public defense cases for a flat annual fee. In 2008 and 2009 the county retained John Hummel to do its public defense work.

Hummel apparently concluded that he could make more money if he could convince his would-be public defense clients to retain him privately. So he met with a number of these clients before his formal appointment as public defender. In those meetings Hummel tried to persuade these clients to retain him privately.

Jerry Callies was one of the defendants who met with Hummel under these circumstances. Callies met with Hummel after Callies had applied for court-appointed counsel. A bailiff directed Callies to meet with Hummel to discuss Callies‘ application. During the meeting Hummel told Callies that he did not qualify for appointed counsel. Hummel then suggested that Callies retain him and pay him as his private lawyer.

Hummel told the imprisoned Callies that if Callies would sign over his guns and pay $2,500, Hummel would get him out of prison that day. He also warned that if Callies did not hire Hummel, Callies would spend thirty more days in prison and might even face additional charges. Callies relented. He gave Hummel his firearms and signed a promissory note for $2,500 in exchange for representation.

Callies also alleges that Hummel asked him to fill out a new application for appointment of counsel and to list an inflated income amount in order to guarantee that Hummel would not be appointed as counsel. At trial, there was conflicting evidence as to whether Hummel was in fact appointed as Callies‘ counsel (a minute entry suggested that Hummel was appointed, while a recommendation by the county attorney that Callies be denied counsel cuts the other way). 

John Burke was a second would-be public defense client who met with Hummel. Hummel met with Burke after Burke had been charged with various drug and weapons charges. After filling out an application for court-appointed counsel, Burke gave the application to Hummel, believing that Hummel was in charge of the paperwork. During the meeting, Hummel mentioned that Burke, who had been in court before, must “know how courts are about public defenders.’ Hummel also indicated that he would be able to ―better represent [Burke]’ if Burke paid Hummel $5,000. After this conversation, Burke‘s father agreed to a $2,500 charge to his credit card. Hummel suggested he would work out a plan for payment of the remaining $2,500.

Scotty Harville and Joe Sandberg also met with Hummel. A judge had told them both that they qualified for counsel. Yet Hummel told them that ‘it would look better” in court if they hired private counsel rather than rely on the work of a public defender. He also said they had a ―better chance‖ of getting out of jail and avoiding further jail time if they retained him privately. Hummel convinced both Harville and Sandberg to sign promissory notes, which, Hummel claimed, would “make it seem as though” they had retained him as private counsel.” Hummel indicated that he would never try to collect on the promissory notes. He also suggested that Harville sign over to Hummel the weapons seized upon Harville‘s arrest to avoid facing further charges related to the weapons.

John Spencer was the last of the would-be public defense clients at issue in this case. Spencer met with Hummel after completing his application for court-appointed counsel. Hummel asked Spencer for collateral in return for Hummel‘s services. And Spencer agreed—at Hummel‘s urging—to sign over multiple firearms to Hummel as collateral. As with Callies, a minute entry suggested that Hummel had in fact been appointed to represent Spencer.

He admitted that he had destroyed applications for appointed counsel.

The ill-gotten gains

Hummel acquired the following property as a result of this scheme: at least $2,500 cash, $15,000 worth of written or oral promises, and eight firearms.

On appeal he raised issues with respect to jury unanimity and prosecutorial misconduct

Mr. Hummel raises important, unresolved questions of state constitutional law in this appeal. But he has failed to identify a basis for reversal of his convictions. We affirm.

(Mike Frisch)