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State v. Horton

Decided: April 10, 1961.


For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Hall, J.


This appeal challenges as inadequate the compensation awarded to attorneys assigned by the Bergen County Court to represent an indigent defendant on the trial of his indictment for murder. Resolution of the question turns on the scope and meaning of "reasonable compensation," ordered by our rules to be allowed for legal services to indigents "in cases of murder" (R.R. 1:12-9(d)) and directed by statute (N.J.S. 2 A:163-1) to be paid by the county from public funds upon the certificate of the judge fixing the amount. The issue is novel.

Herbert F. Myers, Jr., an experienced trial lawyer some 26 years at the bar, and Herbert Koransky, a younger attorney admitted about 9 years, were appointed by the trial court as defense counsel at the time defendant entered his plea of not guilty to the indictment. A law clerk was also assigned to assist them, as authorized by the cited rule. The trial commenced about two and one-half months later and continued for 14 days, of which the first three were consumed in selecting the jury. The defendant was acquitted and there is no question of the quality of the service rendered by appellants in a difficult case where the defendant's life was at stake.

In their applications to the trial judge for compensation, Mr. Myers sought $8,847.50 and Mr. Koransky, $7,115, a total of $15,962.50. Of this amount, $11,200 represented the request for $400 per day each for services at trial. No indication is given as to the extent of the junior attorney's actual participation in the trial. According to the affidavits submitted, investigation and preparation occupied the partial time of each attorney for the first two months after assignment (excluding a three-week period for Mr. Myers when he was out of the State) and full time for the two weeks immediately preceding the trial. Included were five or six court appearances on pretrial matters, as well as investigation, research and trial preparation. Unfortunately the affidavits deal only with very broad approximations of the time spent prior to trial. Apparent inaccuracy and inconsistency are demonstrated when a totalling of the hours claimed by one of the attorneys indicates a substantial excess over normal full time for the entire three months of service. The actual request for compensation for services prior to trial was made, however, on the rather incongruous basis of court appearances during that period, Mr. Myers claiming 10 such at $300 each and Mr. Koransky 7 at $200 each, totalling $4,400. In addition, payment was sought for disbursements of $247.50 and $115, respectively, most of which was related on a rather general basis to the purchase of meals and beverages during the investigation and preparation. The appendix also would indicate that the county paid bills for the charges of certain experts who served the defense.

The court allowed each attorney $1,500, pursuant to the practice in Bergen County fixing this amount as the standard fee in every murder case, regardless of whether the matter goes to trial and irrespective of the amount of work involved. The attorneys appeal directly to this court, the matter arising in a capital cause. R.R. 1:2-1(c). They take the position that "reasonable compensation" for representing an indigent charged with murder should be determined by the same standards as if the client were able to pay fully

and that the allowances requested, so tested, were proper and should have been granted. See Canon 12 of Canons of Professional Ethics; State by Parsons v. United States Steel Corp., 22 N.J. 341, 360-361 (1956); In re Bloomer's Estate, 37 N.J. Super. 85, 94 (App. Div. 1955). The county, on the other hand, views the representation as one falling within the professional obligation of the bar of this State to provide legal services for indigent persons accused of crime. Consequently it urges that so-called full compensation is neither intended nor justifiable, that the sum to be allowed in any case is a matter entirely within the discretion of the trial court and so the amounts awarded here should not be disturbed.

From very early days New Jersey has considered the matter of counsel for an indigent criminal defendant as one of absolute right under state law. State v. Ballard, 15 N.J. Super. 417, 420 (App. Div. 1951), affirmed 9 N.J. 402 (1952). Thus, unlike many other jurisdictions, our requirements have long gone beyond those laid down by decisions of the United States Supreme Court in recent years making appointment an essential of due process under the Fourteenth Amendment in capital cases, Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), and a similar requisite to assure a fair trial in an increasing variety of non-capital situations. Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948); Blackburn v. State of Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2 d 242 (1960); Hudson v. State of North Carolina, 363 U.S. 697, 80 S. Ct. 1314, 4 L. Ed. 2 d 1500 (1960); McNeal v. Culver, 365 U.S. 109, 81 S. Ct. 413, 5 L. Ed. 2 d 445 (1961); Legal Aid to Indigent Criminal Defendants in Philadelphia and New Jersey, 107 U. Pa. L. Rev. 812, 815-817 (1959).

The right of the indigent in this State to be furnished counsel had its origin in a statute passed March 6, 1795 -- the first enactment on the subject in the country. Trebach, "The Indigent Defendant," 11 Rutgers L. Rev. 625, 629

(1957); Beaney, The Right to Counsel in American Courts 21 (1955).*fn1 The act specified that "the court, before whom any person shall be tried upon indictment, is hereby authorized and required to assign to such person, if not of ability to procure counsel, such counsel, not exceeding two, as he or she shall desire, to whom such counsel shall have free access at all seasonable hours." Paterson, Laws 162 (1800). The later constitutional provision (Const. 1844, Art. I, par. 8, repeated in Const. 1947, Art. I, par. 10) that "In all criminal prosecutions the accused shall have the right * * * to have the assistance of counsel in his defense" was undoubtedly given scope and meaning by the earlier statute and in turn served to add an organic basis to the right.*fn2 The statute remained on the books in substantially the same form (R.S. 2:190-3) until 1952. Since it covered practice and procedure committed by the 1947 Constitution to the rule-making power of this court, it was not enacted in the revision of Title 2 of the Revised Statutes.

The rules replacing the statute in implementation of the constitutional guarantee extend its scope and facilitate its exercise in an effort to bring closer to attainment the essential goal of equal justice for all. In their present form it is obligatory "where a person charged with crime appears in any court, without counsel" for the judge to "advise him

of his right to counsel and of the privilege of having counsel assigned, if indigent, and assign counsel to represent him unless he elects to proceed without counsel or is able to obtain counsel." R.R. 1:12-9(a). See also R.R. 3:2-3(b), 8:3-3(b). Cf., Jenkins v. State, 57 N.J. ...

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