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State v. Rush

Decided: March 7, 1966.

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



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

Weintraub

These matters involve the question whether counsel assigned to defend indigents charged with crime is entitled to receive from the county or the State compensation for services and reimbursement of out-of-pocket expenses. In the one case, the charge was armed robbery. In the other, the charges were assault with intent to kill, atrocious assault and battery, and carrying a concealed weapon. The applications for allowances and reimbursement were denied by the trial court, State v. Rush, 87 N.J. Super. 49 (Cty. Ct. 1965), and we certified counsel's appeals before argument in the Appellate Division.

The only statute expressly dealing with the subject of compensation is N.J.S. 2A:163-1, which provides for payment to assigned counsel "in a murder case." We have heretofore accepted this statute as the exclusive basis for compensation for services. Thus in In re Steenback, 34 N.J. 89 (1961), we denied compensation to counsel assigned to represent a minor charged with juvenile delinquency involving homicide on the ground that the situation was beyond that statute, and in State v. Donaldson, 36 N.J. 45 (1961), we denied compensation to assigned counsel where there was a homicide but the grand jury failed to return an indictment for murder. In both cases we referred to the ancient professional duty of a member of the bar to respond to a court's assignment, and in State v. Horton, 34 N.J. 518 (1961), we took that obligation into account in deciding the amount of

compensation which should be paid in a murder case under the statute to which we have referred. But while we thus limited compensation to murder cases, the subject of that statute, we stressed the need for a comprehensive examination of the problem and reserved the question whether the power and responsibility for change rests with our Court. State v. Donaldson, supra, 36 N.J., at p. 50.

In Horton we explored the history of the accused's right to counsel. Since it is a backdrop for the issue before us, we will summarize it.

The common law did not assure all accuseds a right to retain counsel. In England, at the time of the American Revolution, one charged with a misdemeanor could defend through counsel, but as to felonies other than treason he could enlist the aid of counsel only upon points of law, and that remained the rule in England until 1836. Betts v. Brady, 316 U.S. 455, 465-468, 62 S. Ct. 1252, 86 L. Ed. 1595, 1603-1605 (1942); State v. Horton, supra, 34 N.J., at p. 523, fn. 2; Donnelly v. State, 26 N.J.L. 601, 606 (E. & A. 1857); 1 Cooley, Constitutional Limitations (8 th ed. 1927), pp. 696-708; Beaney, Right to Counsel (1955), pp. 8-12; Annotation, 130 A.L.R. 1439 (1941); Annotation, 36 L.R.A., N.S., 377 (1912).

This restriction upon the right to enlist the aid of counsel was rejected in New Jersey's Constitution of 1776 which provided in Art. XVI "That all criminals shall be admitted to the same privileges of witnesses and counsel, as their prosecutors are or shall be entitled to." Our State was perhaps the first to legislate the further right for an accused who is indigent to have counsel assigned without charge. State v. Horton, supra, 34 N.J., at pp. 522-523. Thus the act of March 6, 1795 (Paterson, Laws 162 (1800)) provided:

"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 reasonable hours."

As observed in Horton, supra, 34 N.J., at p. 523, the provision of Art. I, para. 8, of the Constitution of 1844 that "In all criminal prosecutions the accused shall have the right * * * to have the assistance of counsel in his defense" could be understood in the light of our own history, not only to assure a right to retain counsel, but also to fix in constitutional terms the further right, created by the 1795 statute, for the assignment of counsel to an accused unable to afford his own. Finally we add that the United States Supreme Court has found the Federal Constitution requires the State to furnish counsel to an indigent accused of crime. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963).

That, in brief, is the history of the right of the indigent accused. We are here concerned with the burden of supplying the indigent with a free defense. As to this, there is no doubt that it was the professional obligation of the English and the American attorney to accept an assignment to represent an indigent defendant, and except for Indiana, Iowa, and Wisconsin, the view in our country has been unanimous that there is no enforceable right to compensation. State v. Horton, supra, 34 N.J., at p. 525; Annotations, 144 A.L.R. 847 (1943); 130 A.L.R. 1439 (1941); 36 L.R.A., N.S., 377 (1912). The majority position seems to be that there is no power to order payment in the absence of a statute providing for it, while Indiana and Wisconsin, found their constitutions required compensation, Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 29 N.E. 2 d 405, 130 A.L.R. 1427 (Sup. Ct. 1940); County of Dane v. Smith, 13 Wis. 585, 80 Am. Dec. 754 (Sup. Ct. 1861), and Iowa, the other minority State, found authority for payment to be implicit in a statute which, like our act of 1795 quoted above, authorized or directed the assignment of counsel. Ferguson v. Pottawattamie County, 224 Iowa 516, 278 N.W. 223 (Sup. Ct. 1938).

But although the majority view thus places the burden upon the members of the bar, no one suggests they may not

constitutionally be relieved of it. Indeed, the vast majority of the state legislatures have provided for some compensation for assigned counsel, Silverstein, Defense of the Poor (1965), pp. 16, 253, and recently the Congress provided for compensation with respect to offenses other than petty ones, Criminal Justice Act of 1964, 18 U.S.C.A. ยง 3006A. As we have already mentioned, our Legislature has provided for compensation in murder cases, N.J.S. 2A:163-1. The legislative bill from which that statute stemmed did not confine compensation to murder cases. It was so amended before passage, State v. Horton, supra, 34 N.J., at p. 527, n. 5, but not, we may safely assume, for doubt as to the constitutional power of the State to provide for payment.

I.

Appellant claims the Constitutions, State and Federal, require that compensation be paid. He not only asserts that certain provisions protect a lawyer from an order to defend without compensation, but he also contends the right of the accused himself to the aid of counsel leads to the same result.

A.

In strictness counsel for an indigent defendant is hardly in a position to claim compensation on the ground that the rights of his assigned client have been infringed. However, we appreciate that counsel's purpose is to place a pressing problem before us rather than to gain a dollar result for himself. In fact, he expressly asks that, should he prevail, the award for his services be limited to six cents. To the end that all phases of the issue may be in view, we will assume he has the status to press the constitutional claims of defendants charged with crime.

As to the right of an accused, appellant contends that counsel, if unpaid, cannot by his performance satisfy the constitutional guarantee of the right to the aid of counsel. We know of no data to support a claim that an assigned attorney

fails or shirks in the least the full measure of an attorney's obligation to a client. Our own experience, both at the bar and on the bench, runs the other way. A lawyer needs no motivation beyond his sense of duty and his pride.

Nor can it be said that assigned counsel are less qualified than counsel privately retained. As in other callings, some men acquire reputations for excellence. In numbers they are few, and sometimes it is not clear why fortune has chosen them alone. It is understandable that a defendant will seek a lawyer of wide repute if he can afford him, but of course the Constitution does not assure every man, indigent or not, that only a leader of the bar will speak for him. Even the State cannot command such representation; most criminal cases are prosecuted by young men who have yet to be acclaimed but who are not in the least unequal to their responsibility on that account. Nor does preeminence at the bar necessarily bespeak special experience in ...


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