February 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARBARA BROOKMAN, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0823.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Espinosa.
In this case, we granted leave to the Office of the Public Defender (OPD) and to defendant, Barbara Brookman, to appeal from an order entered by the trial court sua sponte that required the Public Defender to appoint an attorney to represent defendant at her expense. Defendant's cross-appeal was subsequently administratively dismissed.*fn2 We now reverse.
Defendant was indicted in September 2007 on charges of neglect of an elderly or disabled person, N.J.S.A. 2C:24-8 (count one), resisting arrest, N.J.S.A. 2C:29-2(a) (count two), and obstruction of the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count three). She was represented in the initial stages of this case by privately retained counsel. In April 2008, the trial court granted the motion of defendant's counsel to be relieved as counsel. Thereafter, defendant represented herself.
On August 26, 2009, the trial court conducted a pre-trial conference. The court began by stating its intention to schedule a new trial date and asked defendant if she could be ready on September 8. When she replied, "No," the court offered November 9. Again, she replied that she could not be ready on that date. After protracted inquiry into defendant's reasons for wanting a later date, the court set November 9 as a peremptory trial date.
The conference continued with a discussion of outstanding discovery issues. The trial court spoke to defendant about "the problems of going pro se" that defendant would have to live with because she wanted to represent herself. It is evident from the transcript that defendant proved to be a challenging litigant, prompting the court to repeatedly instruct her to "stop." After defendant rebuked a court employee who apparently laughed at her and complained, the court cautioned her, stating, "Ms. Brookman, . . . you're very close to forfeiting your right to represent yourself[.]" Shortly thereafter, the court announced that defendant had forfeited her right to represent herself.
Defendant argued with the court, stating that she did not forfeit her right:
I have a right to discuss with you. That's my way of discussing, speaking loudly. I'm not arguing with you. You know that Jews speak loudly. You're one yourself. Your mother speaks loudly, too. I'm not arguing with you. I'm just telling you.
The transcript reflects that defendant continued to engage in conduct toward the court that was inappropriately confrontational and argumentative.
The following colloquy ensued:
THE COURT: You are going to - - based on the entire course of your conduct before me as a pro se litigant I am ruling that you have forfeited your right to represent yourself, and I am going to enter an order to that effect.
You are going to come back here to court on the 14th of September, Monday, at nine o'clock. Do you have any problem with that date?
MS. BROOKMAN: Yes, I have a problem with that date.
THE COURT: What's your problem.
MS. BROOKMAN: You can't just assign dates and you take a vacation when you want. I am not a well woman. You cannot keep pulling me into court for nothing. You told me I could talk. I want you to play the tape or I'll pay you the $10 to get the tape.
THE COURT: Ms. Brookman, be quiet. Ms.
Brookman, be quiet.
MS. BROOKMAN: You're not taking away my rights.
THE COURT: You're going to come back here on September 14th at nine o'clock. And I strongly suggest that you have a retained lawyer with you at that time. If you do not I will appoint the public defender's office in this county to represent you, and they will send you a bill for your services.
MS. BROOKMAN: Thank you, Your Honor. I want to go home. I don't feel well. Thank you for your time. Thank you for - -
THE COURT: If you are not here September 14th - -
MS. BROOKMAN: I'm not - - I'm not coming September 14th - -
THE COURT: Stop it.
MS. BROOKMAN: I'm tell you right now.
THE COURT: Stop it. Stop.
Defendant did not stop. She accused the judge of lying and continued to engage in argumentative behavior.
Defendant also stated unequivocally that she did not want a public defender to represent her. The court stated,
If you don't want a public defender to represent you then you come in here on the 14th . . . with a privately retained attorney. If you're not here on the 14th then your case will proceed without you and you will have waived your right to be here on the 14th and we will go ahead with the public defender and we will schedule the rest of what we have to schedule.
After yet another interruption from defendant, the court reiterated this instruction. The court entered an order, dated August 26, 2009, that states:
ORDERED that defendant has forfeited her right to represent herself at trial based on her conduct in court on this date and on prior dates, including October 24, 2008, and the Office of the Public Defender is to appoint an attorney to represent defendant in this matter, and defendant is required to pay the Office of the Public Defender for their services and expenses,
AND IT IS FURTHER ORDERED that the defendant is to appear before this court on September 14, 2009, for a pretrial conference with a privately retained counsel, if she wishes to retain one, and that if she does not appear with a privately retained counsel, she will be represented by an attorney from the Public Defender's Office[,]
AND IT IS FURTHER ORDERED that if the defendant fails to appear before this court on September 14, 2009, defendant will have forfeited her right to be present and the proceedings will go on without her.
On September 14, 2009, defendant appeared in court without an attorney. When asked by the court whether she planned to hire an attorney to represent her, she stated, "There'll either be an investigation or an attorney." The OPD objected to its appointment to represent defendant, stating that unless defendant were found to be indigent, it would be a violation of law for the OPD to provide representation. The trial court entered an order on September 14, 2009, staying the matter pending appeal.
At no time did defendant request the services of the Office of the Public Defender, complete an application for such services or provide financial information to permit a determination that she met the indigency requirement for such representation. Indeed, the court stated its assumption that defendant was not indigent or eligible for representation by the OPD.
We are sympathetic to the extraordinary challenge faced by the trial court in managing the trial of an obstreperous pro se defendant. However, in the absence of a finding of indigency, the court may not attempt to defuse the situation by requiring the OPD to assume representation, even if the defendant will be required to pay for its services.
"The OPD was established for the purpose of providing representation for indigent defendants charged with the commission of indictable offenses." State v. Cann, 342 N.J. Super. 93, 105 (App. Div.), certif. denied, 170 N.J. 208 (2001) (citing N.J.S.A. 2A:158A-5). N.J.S.A. 2A:158A-1 declares the policy underlying the Public Defender Act as follows:
It is hereby declared to be the policy of this State to provide for the realization of the constitutional guarantees of counsel in criminal cases for indigent defendants by means of the system and program established and authorized by this act to the end that no innocent person shall be convicted, and that the guilty, when convicted, shall be convicted only after a fair trial according to the due process of the law.
As stated in N.J.S.A. 2A:158A-14, the Legislature explicitly limited the availability of the services provided by the OPD to defendants who were determined to be indigent:
Eligibility for the services of the Office of the Public Defender shall be determined on the basis of the need of the defendant.
Our Supreme Court has stated unequivocally that "[i]n order to receive State-funded services, [a defendant] must be indigent."
In re Kauffman, 126 N.J. 499, 502 (1991). Moreover, "[b]ecause of its budgetary restraints, OPD must play an integral part in the indigency determination." Cann, supra, 342 N.J. Super. at 105 (citing Kauffman, supra, 126 N.J. at 502). The Court has described that integral part as having "the right to review and determine whether defendant is indigent." Kauffman, supra, 126 N.J. at 502. See also In re Cannady, 126 N.J. 486 (1991). Plainly, that did not occur here.
The fact that the court also directed that defendant be billed for the services of the OPD does not cure the impropriety in requiring the OPD to represent a defendant who has not even claimed to be indigent. At oral argument on September 14, the Public Defender observed that defendant would receive legal services at a reduced rate; that instead of the customary rate to be paid to an attorney with similar experience, she would only be required to reimburse the OPD at an hourly rate of $30.
Therefore, even with reimbursement, the unwarranted diversion of OPD resources would fail to make the OPD whole. But, more important, the option of ordering representation subject to reimbursement is only available in strictly limited circumstances. The statute that identifies the factors to be used in measuring the need of the defendant, N.J.S.A. 2A:158A- 14, states:
In the event that a determination of eligibility cannot be made before the time when the first services are to be rendered, or if an initial determination is found to be erroneous, the office shall undertake the same provisionally, and if it shall subsequently be determined that the defendant is ineligible it shall so inform the defendant, and the defendant shall thereupon be obliged to engage his own counsel and to reimburse the office for the cost of the services rendered to that time.
E.g., In re Request of Frank, 276 N.J. Super. 269 (App. Div. 1994) (Defendant was entitled to representation subject to reimbursement where defendant demonstrated that the only income was from social security monthly payments and defendant did not have the present financial ability to secure competent legal representation to handle the criminal appeal).
It is evident that the circumstances that would permit a provisional appointment of the OPD were not present here. There was neither a prior erroneous determination of indigency nor an urgent need to render services before a determination could be made. The order was entered in August 2009, two years after defendant was indicted, and in anticipation of a trial scheduled for November 2009, a timeframe that allowed adequate time for an indigency determination to be made.
There are means available to the court to address a defendant whose behavior is contumacious or disruptive to the orderly management of proceedings. In the absence of a determination of indigency, the assignment of the OPD is not one of those means.