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Matter of Cannady

Decided: December 19, 1991.


On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J.


In this appeal, as in In re Kauffman, 126 N.J. 499, 600 A.2d 465 (1991) and in State v. Arenas, 126 N.J. 504, 600 A.2d 467 (1991), also decided today, we consider whether the Public Defender Act, N.J.S.A. 2A:158A-1 to -25, requires the Office of the Public Defender (OPD) to provide ancillary services for indigent defendants whom it does not represent. We conclude that it does.


Defendant, Janice Cannady, was indicted for the murder of her live-in boyfriend. Members of her family thereafter retained private counsel to represent her. After several interviews with his client, defendant's counsel concluded that Cannady was suffering from Battered Women's Syndrome when she killed her boyfriend. To evaluate whether the Syndrome could constitute a defense at defendant's trial, counsel wished to retain Cissie Alfonso, who had testified before as an expert on Battered Women's Syndrome. Alfonso's fee is $3,000.00.

Although Cannady's family paid her attorney's retainer, they cannot afford to pay for Alfonso's services. Cannady alleges she is indigent.

Cannady brought a motion to compel the OPD to pay for Alfonso's services. Relying on State v. Manning, 234 N.J. Super. 147, 560 A.2d 693 (App.Div.), certif. denied, 117 N.J. 657, 569 A.2d 1351 (1989), the trial court ruled that the Public Defender Act requires the OPD to pay for the necessary expert services of indigent defendants represented by private counsel retained by their families. The trial court ordered Cannady to fill out the required paperwork to establish whether she had been indigent at the time her family had retained private counsel. Consistent with Manning, the court also required private counsel to submit evidence at a hearing concerning the necessity of the defense. Under the trial court's analysis, the court must determine the necessity of the expert and the reasonableness of the expert's fee. At the hearing, the OPD did not dispute that Alfonso's testimony was necessary or that her fee was reasonable.

The trial court entered an order requiring the OPD to pay Alfonso's fee. The OPD appealed, arguing that the Public Defender Act does not require it to pay for the ancillary legal services of defendants whom it does not represent, regardless of their indigency. According to the OPD, Essex County should pay for Alfonso's services.

The Appellate Division denied the OPD's motion. We granted the OPD's motion for leave to appeal. 126 N.J. 322, 598 A.2d 882 (1991).


A. History of the Defense of Indigents in New Jersey

The obligation to defend indigents accused of indictable crimes has existed in New Jersey since 1795. Prior to adoption of the Public Defender Act, New Jersey furnished counsel to

indigent defendants by way of an assigned-counsel system. Under that system, a judge would assign attorneys in alphabetical rotation from a master list maintained in the county in which venue was to be laid in the indigent defendant's case. See State v. Rush, 46 N.J. 399, 407 n. 1, 217 A.2d 441 (1966). In certain cases, such as murder, the judge could make a special designation of counsel. Ibid. Only in murder cases would the assigned attorney receive compensation. See N.J.S.A. 2A:163-1.

In Rush, supra, 46 N.J. at 412, 217 A.2d 441, the Court decided that the time had come to relieve the New Jersey bar of the task of defending without compensation indigents accused of indictable crimes. The impetus behind the Rush decision was that the burden of assignments had vastly increased, due to both the ever-growing number of cases and the greater amount of time required for each case by virtue of new developments in the criminal law. Ibid.

The Court found that the legislation mandating that the county pay for all necessary expenses of prosecution, L. 1933, c. 19 § 1, now codified at N.J.S.A. 2A:158-7, required the county to pay attorney fees for indigent defendants. Id. at 414-15, 217 A.2d 441. The Court reasoned that costs of providing counsel for indigent defendants fell within the necessary expenses of prosecution because under Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the prosecution of an indigent defendant "would halt and inevitably fail" unless the defendant were represented by counsel. Rush, supra, 46 N.J. at 415, 217 A.2d 441.

Having found legislative authority for placing the financial burden on the county, the Court nevertheless delayed the effective date of its decision so as to provide the Legislature with the opportunity to decide how to finance legal representation for indigent defendants. Ibid. The Court noted that the Legislature could provide for indigent defendants by continuing the appointment system, by establishing a public defender, or

by providing a system combining the two. Ibid. The Legislature chose to create the OPD.

B. Public Defender Act's legislative history

The Act's legislative history establishes that the Legislature intended that the OPD assume the costs of providing ancillary services to all indigent defendants. When the Legislature adopted the Public Defender Act, it specifically stated that the Act was to implement the recommendations contained in the December 22, 1966 Report of the New Jersey Commission on the Defense of Indigent Persons Accused of Crime (Defense Commission Report). L. 1967, c. 43, § 24. That report concluded that "the cost of providing the service of the [Public] Defender Office should be borne entirely by the State without any provision for apportionment either of the entire cost or of any part thereof among the counties.' Defense Commission Report at 2 (emphasis added). Concerned that apportionment of financial burden would mean apportionment of responsibility and control, the Defense Commission stated that quality and uniformity of service, the touchstones of the statute, would "best be accomplished through the structure of a single system for the entire State . . . with as little as possible of collateral burdens such as would be involved in dealing with twenty-one separate boards of freeholders." Ibid. The Commission envisioned minimal, if any, participation by the counties in the financing of indigent defense. It reasoned that to have the State bear all costs would ensure quality control, uniformity, economy, and greater efficiency than if the counties were to share any of the costs.

In April 1967, the Legislature adopted the comprehensive, unified scheme that the Commission had recommended in its report. N.J.S.A. 2A:158A-1 to -25. Under that unitary, centralized system, the State assumed all costs for attorneys and for ancillary services. When the acting Governor signed the Public Defender Act, he noted that the ...

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