Unconvicted appellants need counsel, state Supreme Court rules

Someone's legally responsible for representing non-convicted respondents on appeal, California Supreme Court justices determined Thursday. They're just not saying who.

The Sixth Amendment of the U.S. Constitution mandates that anyone accused of a crime has the right to a court-appointed counsel at trial, and that responsibility typically falls to the state's public defenders' office.

Federal law additionally requires public defenders to represent appellees who challenge their convictions. But legislators didn't offer much guidance on how someone accused but not convicted should be represented on appeal.

That's a blind spot one step closer to correction with Thursday's ruling, which during argument largely centered on the Sixth and Fourteenth Amendments and relevant federal law. But in an opinion written by Justice Leondra R. Kruger, the court made its decision based on the California Constitution, rather than its federal counterpart.

A defendant's right to assistance of counsel extends beyond trial to other critical stages of the criminal process where the defendant's basic right to a fair trial is at stake, Kruger wrote. Examples offered include arraignments, preliminary hearings and post-indictment interrogations.

It would also extend to an appeal of a motion to suppress evidence, which is a central issue in the case. Prosecutors appealed a lower court's granting of a motion to suppress brought by Ruth Zapata Lopez, who had been accused of driving under the influence. Lopez won dismissal after convincing the court that the traffic stop leading to her arrest was invalid.

"In the trial court, Lopez, with her counsel's help, secured a favorable suppression ruling; in the absence of the suppressed evidence, the trial court concluded that the prosecution could not continue," Kruger wrote. "A reversal on appeal would both revive the prosecution's case against Lopez and meaningfully increase the chances of conviction."

While not a trial itself, Kruger said to leave Lopez without counsel would pose "a clear and substantial risk of prejudice" to her trial position. Proper representation, she said, is particularly important when dealing with the complexities of an appeals court.

On appeal, parties couldn't agree on who should be responsible for representing Lopez. The Appellate Division of the San Bernardino County Superior Court argued the local public defender's office was on the hook, and the public defender's office argued the opposite.

And while Thursday's ruling makes clear Lopez is indeed entitled to representation, the court punted the issue of who's actually responsible for it back to the 4th District Court of Appeal. Christopher Gardner v. Appellate Division of the Superior Court of San Bernardino County, S246214 (Cal. Sup. Ct., 2019).

Stephan J. Willms, a San Bernardino County public defender who handled the office's argument before the state Supreme Court, said the result was largely expected. The higher court's deference on the issue isn't unprecedented, Willms noted. When the lower court made its ruling, they similarly decided without addressing the issue of who was responsible for representation.

"The Court of Appeal didn't resolve the issue because it ruled Lopez did not have a right to appointed counsel," Willms said. "So the question remains whether the appellate division must appoint a new attorney to represent her or whether the public defender will continue to represent her."

Considering how overburdened most public defender's offices are these days, Willms said it's largely an issue of resources.

When entire private practices are dedicated to specific niches in appellate law, Willms said it's a lot of responsibility to put on the generally less experienced defenders working in misdemeanors.

"We're a trial practice, not an appellate firm," Willms said. "To force these attorneys to pile, on top of all their other responsibilities, this appellate work -- sometimes, it's just too much."

The circumstances of this case are admittedly fairly rare, Willms said, but he felt it was an important issue worth litigating nonetheless.

While he hopes the case draws attention to the issue, he felt it was ultimately an issue for legislators to fix.