If Connecticut opens the gate to provide paid experts for pro se indigent defendants, who will serve as gate-keeper to set limits?
This question and others unfolded Thursday during an unusual hour-long hearing before six of the seven justices of the Connecticut Supreme Court.
At issue is the course the state courts will take for indigent defendants who reject the legal services of the state public defender’s office. Who will pay their costs, and which branch of the state court system will oversee the process?
The hearing before the state’s top judges drew the major players in the state’s court system into the Supreme Court in Hartford.
There were eight attorneys in all. They represented the Office of the Chief State’s Attorney, the state public defender’s office, the court administrator’s office (an agency whose leader is appointed by Chief Justice Chase T. Rogers) and Max Simmons, who was assigned to represent Dr. Lishan Wang, the indigent pro se jailed defendant who says he needs experts for his murder trial.
The Murder Case
The murder case that led to this unusual hearing started in Branford in April 2010, when Dr. Wang, 47, was arrested and charged with the murder of Dr. Vanjinder Toor outside Dr. Toor’s condo in Branford.
Dr. Toor and Dr. Wang were once colleagues at the Kingsbrook Jewish Medical Center in New York. At the time he was shot to death outside his Branford condo, Dr. Toor was 34, a father and a post-doctoral fellow at Yale. His then-pregnant wife witnessed the shooting. She was shot at too, but Dr. Wang missed. Dr. Wang has alleged Dr. Toor and other Kingsbrook doctors and officials caused his firing in 2008 and ended his medical career.
After his arrest, the New Haven public defender’s office represented Dr. Wang. He was largely uncooperative, providing little information, they told the trial judge. Initially Dr. Wang was declared incompetent to stand trial and sent to a mental facility.
Many months later he returned to court and was declared competent to stand trial. Soon after he asked Justice Roland D. Fasano to permit him to represent himself at trial and the judge agreed.
The public defender’s office kept a stand-by attorney in the case. His duties were narrowed after Dr. Wang declared he was in charge.
Superior Court Judge Patrick J. Clifford now oversees the case, which is unable to move forward to trial because Dr. Wang has no experts. Wang says he needs a psychiatric expert and an investigator. Absent the public defender’s office and its resources, the issue now facing the state’s top court is how to move forward.
Assuming that a defendant in the state of Connecticut is entitled to represent himself or herself, which is the law, other questions follow: Do the fees fall to the judicial branch or the public defender’s office? And who oversees the process? Connecticut, unlike other states, has no statute to guide it.
Moving To Trial
Judge Clifford asked Eugene R. Calistro, Jr., senior assistant state’s attorney, to draw up a “reservation,” in effect a series of questions for the high court to answer in order to move the case to trial.
Underlying the problem is the fact that if Dr. Wang goes to trial without experts and he is convicted, he can appeal on the grounds that he was denied experts and a second trial will be necessary. Calistro was in court yesterday seated next to Tim J. Sugrue, an appellate attorney in the state’s attorney’s office.
Sugrue told the court that Dr. Wang’s case raises “a constitutional question.” He added that Judge Clifford believed the question was ripe to be resolved. “If he did not believe that he would not have invoked these questions.” He added that the Wang case poses “significant mental health components” that undoubtedly would be presented at trial.
Before court got underway, in an interview, Diane Polan, a New Haven defense attorney, called “absurd” the position of the Office of Chief Court Administrator (CCA) that “the issue shouldn’t be decided.” Adam P. Mauriello, who argued the case for the CCA, told the high court it did not need to decide the issues.
Initially Judge Andrew J. McDonald seemed to agree with Mauriello. As the arguments progressed and other judges chimed in, the CCA’s position seemed to diminish.
Contrary to what judges expect of the CCA, which is to be cognizant of their needs, Mauriello said the state’s highest court should not even answer the questions from Judge Clifford and the state’s attorney’s office because Wang has not established that he is constitutionally entitled to receive public funds for an investigator and expert witness. What was necessary, he argued, was a record showing the need.
At one point, Mauriello said aspects of this case revolve around money, as in which branch pays, along with buying services.
Justice Rogers did not buy that argument. “It is not about money if you are deciding a constitutional right,” she replied curtly.
Not resolving these issues means two trials rather than one, and a belief that Wang had not established his constitutional entitlement to receive public funds for experts, two results that did not sit well with many of the lawyers who attended the proceeding.
Wang’s Case Outlined
Max Simmons, who is serving as Dr. Wang’s court-appointed attorney for this case only, observed that the court record so far — and it now three and one-half years old — shows clear evidence that Dr. Wang wants and needs a psychiatric witness. He outlined many of the key dates in the case so far. (Click here to read an earlier story.)
Simmons told the court that Dr. Wang has an “absolute right of self-representation.” That was the constitutional issue at hand.
Chief Judge Rogers seemed to reject the arguments Mauriello put forth, recognizing the constitutional issues raised in the case. She noted that the public defender’s office is the entity most knowledgeable in the area of finding and using experts at trial.
Judge Rogers said that logistically, before deciding whether the public defender’s office or the judiciary should pay the bill, perhaps it would be wise to use the public defender’s stand-by counsel to help a defendant such as Dr. Wang.
Stand-By Answer?
She asked why it wouldn’t make sense, given the problems a judge might face regarding issues of confidentiality and court involvement in the defense, to check first with the stand-by public defender. (He actually attended the court hearing.) “When the defendant says I want an expert, why not go through the stand by and then decide when the overall group meets if he entitled to one and who should appoint the expert? Isn’t the public defender better equipped to do that?” she asked.
“The answer is no,” said Martin Zeldes, who argued the case on behalf of the public defender’s office. He cited State v. Hernandez, a case decided “by this very court.” He said it “limits the role of stand-by counsel.” He added that it had gotten to the point where a stand-by has no capacity. The court decided that case in 2000.
If the stand-by were to seek advice from the public defender’s group that meets monthly on expert witnesses, that would take the public defender’s office into the realm of representing a pro se defendant.
“The instant you go to next level, you make us a representative, and that runs contrary to the rules in the prior judicial opinion,” Zeldes said.
Judge Rogers asked: “Where are those rules, what can they and can’t they do?”
At this point the bench was fully engaged in the issue.
Judge Richard N. Palmer asked Zeldes if his concern was about the defendant in the case or about the public defender’s commission. “If the defendant is willing to take the approach to use stand-by counsel in that way, so be it. Why is that a problem?”
Zeldes replied: “We have to know who we are. Are we fish or fowl?“ he asked, seeking a definition of the role of the public defender when the public defender does not represent a defendant.
Zeldes went on to explain that if the public defender’s office has a substantive role, an investigative role, “it puts us on the line. Are we counsel or are we not counsel?” Helping to select an expert witness for a defendant the office does not represent, he said, “puts ourselves in a representative role.”
Judge Dennis G. Eveleigh raised the judicial issue. What if a judge made the decisions on experts for a defendant? Wouldn’t the judge then become involved in the defense’s case? “I think we are going down the slippery slope.”
Zeldes replied: “We go down the slippery slope no matter what.”
At one point Judge Carmen Espinosa asked Simmons, who reserved time to reply to the other arguments, “Why not ask the defendant to withdraw self-representation so that he might benefit from the public defender’s services?” Other states have taken similar positions.
Simmons replied: “You don’t waive that right at any stage. You should not be required to surrender that right.”
Judge Espinosa replied: “It would be in his best interests to do it that way.” Simmons did not agree; the state has no statute requiring it.
The court is expected to rule in a few months.
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