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State v. Rush

Decided: March 1, 1965.

STATE OF NEW JERSEY, PLAINTIFF,
v.
RUSSELL E. RUSH, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, V. ELVERT LEE COUCH, DEFENDANT



Criminal actions. On applications by assigned counsel for fees and expenses for services rendered.

Wood, A.c., J.c.c.

Wood

These are criminal prosecutions in each of which the applicant, Martin L. Haines, a distinguished member of the bar, was assigned to represent the indigent defendants.

In Rush defendant was charged with armed robbery in violation of N.J.S. 2A:141-1 and 2A:151-5. He is, and was, at the time of the assignment in this case, serving a life sentence in the New Jersey State Prison. At the time of the application counsel had personally interviewed defendant at the State Prison in Trenton and had spent, according to his affidavit, three hours of time in "answering the trial list, interviewing the defendant at the State Prison, and preparing a prior motion, together with miscellaneous telephone calls and correspondence." The court deems counsel's estimate of time spent conservative. In addition, counsel incurred out-of-pocket expenses of $18 which he paid to an investigator who was successful in contacting a potential witness for the defense. To locate this witness the investigator was required to make three separate trips outside Mount Holly, the longest of which was 15 miles.

Counsel estimates his office overhead as being in excess of $15 per hour.

Subsequent to the making of this application Rush was brought to trial. The trial lasted two days and resulted in a conviction. Defendant was remanded to State Prison pending presentence investigation.

In Couch defendant is charged with carrying a concealed deadly weapon, assault with intent to kill, and atrocious assault and battery. Counsel estimates that he spent seven hours of time in the investigation and preparation of the defense of this case, and in addition incurred out-of-pocket expenses in the sum of $76.15, paid to the investigator for interviewing ten prospective witnesses and serving six subpoenas.

In each case counsel asks reimbursement of his out-of-pocket expenses and the allowance of a reasonable counsel fee for his services.

The application raises the question of the proper implementation of the right of indigent defendants to representation by counsel in criminal prosecutions -- a question brought sharply into focus by the landmark decision of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963). In that case the court held that the right of one charged with crime to the assistance of counsel in his defense applies in noncapital as well as in capital cases, and that it is a right guaranteed against infringement by the states under the due process and equal protection clauses of the Fourteenth Amendment.

Gideon v. Wainwright did not change the law of New Jersey, where the right of all persons to representation by counsel when "charged with crime" has long been recognized as basic and absolute. New Jersey Constitution 1947, Art. I, par. 10; R.R. 1:12-9; State v. Horton, 34 N.J. 518, 522 (1961). Indeed, the court "was only articulating a principle that most of those with an opinion -- lawyers, judges, state officials themselves -- had already recognized." Lewis, Gideon's Trumpet, p. 220 (1964).

But here counsel would have this court go beyond the fundamental precept and hold that the "right to counsel" means necessarily the right to paid counsel. He cites Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), in which the United States Supreme Court held that the due process and equal protection clauses of the Fourteenth Amendment operate to require the state to furnish a defendant convicted of armed robbery with a transcript of the trial proceedings for the purposes of appeal; and State v. Horton, supra, which, it is contended, "broadens the obligation of the state to require its payment of numerous expense items, in addition to the transcript." It is, so runs the argument, but a short step from the logic of Griffin and Horton to conclude that payment of counsel is necessary.

Counsel thus now argues that the requirement that the accused be entitled to representation by counsel carries with it by necessary implication ...


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