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State v. Reginald O. Driver

Decided: July 19, 1962.

THE STATE OF NEW JERSEY, RESPONDENT,
v.
REGINALD O. DRIVER, JR., DEFENDANT-APPELLANT



Appeal of Hervey S. Moore, Jr., and Edward B. Meredith, Assigned Counsel.

For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None.

Per Curiam

[38 NJ Page 295] Defendant in this case was convicted of murder in the first degree with a jury recommendation of life imprisonment. Today we have reversed the judgment of conviction and remanded the matter for retrial.

Subsequent to the conviction, assigned counsel for defendant, Hervey S. Moore, Jr., Esq., and Edward B. Meredith, Esq., applied for counsel fees. Affidavits detailing the services were filed and the matter argued at some length in the trial court. An aggregate sum of $6,750 was allowed without apportionment, plus out of pocket expenses. This appeal has been taken from the fee allowance on the ground of inadequacy.

Fees to be allowed counsel assigned to defend indigent defendants in murder cases, and the basic criteria to be applied in fixing them, were considered at length in State v. Horton, 34 N.J. 518 (1961). There Justice Hall, speaking for this court, declared that:

"* * * the amount awarded should be somewhat more than the mere token or honorarium appearing to be the result in many states, even though the recompense must be considerably less than what would be considered full compensation were the accused able to pay. * * * So long as the New Jersey assigned counsel system remains, it seems eminently sound to say that compensation more than token but less than full rate is intended in order to achieve 'a desirable sharing of the economic burden between the Bar and the community' (Equal Justice 90), and that neither too high nor too low a rate of compensation is the goal to be sought." At pages 531-532.

The opinion pointed out that the guidelines had to be expressed in general terms, and the ultimate determination of fees for work done in preparation for and at trial left primarily to the discretion of the trial court who would reach his result with the guidelines in mind.

A joint affidavit was submitted to the trial judge setting forth that the attorneys spent a total of 888 hours in investigation, conferences with witnesses and experts, argument of motions, preparation of briefs on motions, prosecuting an appeal to the Supreme Court from a trial court ruling on pretrial discovery, and preparation for trial. The trial consumed 20 days, 5 days in selecting the jury and 15 days of actual trial.

As the trial judge observed, the lengthy affidavit itemizes each activity engaged in and the hours spent on it. The hours specified in each instance are joint hours indicating (with a few exceptions) that both attorneys were engaged in each activity. Without in any way disparaging the conscientiousness, industry and effort employed in the handling of the case, the court indicated a feeling that in a number of situations the presence of one attorney would have sufficed. His comment was made solely in the discharge of the obligation imposed under State v. Horton, supra, to give adequate consideration to both the public and private interests involved. It may be noted that the appointments here of two senior counsel were made prior to the decision in Horton where we pointed out that senior and junior counsel should be appointed and compensated accordingly, and duplication of services avoided. 34 N.J., at p. 533.

In making the lump sum allowance of $6,750 for both attorneys, the trial court did not discuss the method used in reaching that figure. That is, he did not state the portion granted for pretrial work or for actual trial time. There is a fairly clear indication, however, that he allocated $750 for work done on the interlocutory appeal, thus leaving $6,000 for all preparatory and trial work in his court.

At this juncture, reference must be made to the footnote on page 535 in State v. Horton, supra. Its tenor is this: In all murder cases where an appeal is to be taken, whether from an interlocutory order or from final judgment, the attorney or attorneys must be appointed specially by this court. Application shall be made to us for the purpose, regardless of whether the trial court appointed counsel for defense at that level. But ordinarily such assigned counsel will be designated by us to ...


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