A. At the Defendant’s Expense.

A defendant in a criminal case who is unable to obtain counsel is entitled to have counsel assigned by the court to represent that defendant at every stage of the proceedings.31 Ordinarily, a person who is not indigent or in straitened financial circumstances is required to obtain private counsel if he or she wishes to be represented by counsel. Superior Court Criminal Rule 44 does not by its terms limit the right to one whose inability is financial and may be applicable where the accused cannot obtain satisfactory counsel because attorneys are inhibited by the political atmosphere of the community or for other reasons and would act only upon assignment by the court. In these circumstances, Superior Court Criminal Rule 44 appears to mandate appointment.

The provisions of Rule 44 and the statutory provisions referred to therein for payment by the State of expenses and legal fees incurred by the accused would not be appropriate, and it may be expected that the court’s order assigning counsel would require, in those circumstances, that the accused pay all reasonable attorney’s fees and expenses incurred on his or her behalf.32

A defendant in a criminal case who is not indigent but is able to afford only partial payment for the services of counsel and is unable to obtain counsel may be entitled to the appointment of counsel, albeit not fully at public expense.33 Just how this would work is not clear.34

In any case the court is required to make a reasonable inquiry into the defendant’s financial resources and must make an independent determination about the defendant’s financial ability to retain counsel. In addition, the court must evaluate the defendant’s efforts to obtain counsel. Upon a finding of failure of a non-indigent defendant to make a satisfactory effort to retain counsel, or a demonstrated reluctance or recalcitrance to obtain counsel, a court may make findings of fact on the record and, where appropriate, conclude that such facts constitute an implicit waiver of the right to counsel and may order a defendant to proceed pro se.35

B. At the State’s Expense: The Public Defender

The right to assistance of counsel granted by the Constitutions of the State of Delaware and of the United States does not obligate the State to provide counsel at public expense for defendants who are not indigent.36 Only indigent persons charged with a criminal offense have the right of access to the public coffers to pay for the services of counsel.37

In order to provide indigent defendants in criminal cases with the assistance of counsel at public expense to which they are entitled, Delaware adopted the Model Defender Act in l964.38 This Act creates the office of Public Defender, a salaried officer of the State.39 The Public Defender has the duty to represent, without charge, each indigent person who is under arrest or charged with a crime if the indigent so requests or if the court on its own motion so orders and the accused does not affirmatively of record reject the opportunity to be so represented.40 An indigent defendant who declines the services of the Public Defender is not entitled to appointment by the court of other counsel, unless the Public Defender represents some other conflicting interest in the case.41  However, since declining such services amounts to a waiver of the right to counsel, it must be done knowingly, voluntarily and intelligently.42                          

Upon application of the Public Defender or the indigent defendant, or on the court’s own motion, the court, for cause shown, may appoint an attorney other than the Public Defender to represent the defendant at any stage of the proceedings or on appeal The compensation for services and reimbursement for expenses of such person is in an amount fixed by the court in accordance with the standards set forth in Superior Court Criminal Rule 44(e), and is paid by the State.43

The determination that a person is indigent may be made by the Public Defender before arraignment, but at or after arraignment the determination must be made by the court. Where the Public Defender makes a determination prior to arraignment that the defendant is not indigent and so is not entitled to representation by the Public Defender, the Superior Court has a duty to hold a hearing and make an independent determination on the record as to indigence.44 The burden is on the defendant to establish indigence.45

A defendant is considered indigent when he or she is unable to retain legal counsel without impairing his or her financial ability to provide the economic necessities of life for himself or herself and his or her family.46 The determination as to indigence must be made of record and may not be made on the basis of earnings alone. The court must take into account the obligations of the defendant, including normal living expenses, outstanding debts, the number and ages of the defendant’s dependents, along with additional resources available to the defendant, such as real and personal property, bank accounts, and social security, unemployment and other benefits.47

By statute and court rule, any public officer or employee is entitled to petition the court to appoint counsel at public expense to represent such officer or employee in all phases of any state or  federal criminal action arising from the officer’s or employee’s government employment. If the court determines that the petition has merit, the court may appoint an attorney from the Department of Justice. If the court determines that, due to a conflict of interest or other reason, the Department of Justice is unable to represent such person, the court may appoint a lawyer from the Office of the Public Defender.48

There is a presumptive right to counsel for all indigent parties in all State-initiated contempt proceedings where the alleged contemnor is faced with the possibility of incarceration or other loss of physical property, whether the contempt hearing is styled civil or criminal.  In such cases, it is incumbent upon the trial judge to determine in the first instance whether the alleged contemnor faces the possibility of incarceration.  If such is the case, the presumptive right to counsel attaches. If the State eschews incarceration as a sanction, the burden is on the indigent party to demonstrate an entitlement to court-appointed counsel.  In making its determination, a court may examine (i) the private interests that will be affected by official action, (ii) the risk that procedures will lead to erroneous deprivation of such interests, and (iii) the State’s interest, including fiscal and administrative burdens that the additional procedures will entail.  If, after weighing these factors, and giving the indigent party the benefit of any doubt, it is determined that as a matter of due process and fundamental fairness the indigent party should be represented, the court should appoint counsel, even if a loss of physical liberty is not threatened.48.1

Because of statutory limitations, the Public Defender’s office is not permitted to represent indigent parties in civil contempt proceedings.48.2

31. 11 Del. C. § 5103; Super. Ct. Cr. R. 44.

32. See Potter v. State, 547 A.2d 595, 600-01 (Del. 1988).

33. Potter v. State, 547 A.2d 595, 601 (Del. 1988).

34. If private counsel is appointed, such counsel presumably would serve for the meager fees set by Rule 44(e). On application by counsel, the court would set the fee in accordance with the standards set by Rule 44(e), and the State would be required to pay the fees and expenses allowed. The defendant could be required under 10 Del. C. § 8601 to reimburse the State for these payments only if convicted, so a successful defense would be at public expense. Moreover, the requirement of reimbursement in 10 Del. C. § 8601 does not apply where there is a showing of manifest hardship to the defendant or his or her family. 10 Del. C. § 8601(d).

35. Potter v. State, 547 A.2d 595, 601-02 (Del. 1988).

36. Potter v. State, 547 A.2d 595, 600 (Del. 1988).

37. Hales v. State, 344 A.2d 229, 230 (Del. 1975).

38. 54 Del. Laws ch. 227. The Act is currently 29 Del.C. ch. 46.

39. 29 Del. C. § 4601; Waters v. State, 440 A.2d 321, 323 (Del. 1981); Bailey v. State, 438 A.2d 877, 878 (Del. 1981).

40. 29 Del. C. § 4602.

41. Pendry v. State, 367 A.2d 624, 626 (Del. 1976); Moore v. State, 268 A.2d 875, 876 (Del. 1970).

42. See § 1:3.

43. 29 Del. C. § 4605.

44. Potter v. State, 547 A.2d 595, 598 (Del: 1988).

45. Stacey v. State, 358 A.2d 379, 380 (Del. 1976); Hales v. State, 344 A.2d 229, 230 (Del. 1975).

46. Potter v. State, 547 A.2d 595, 599 (Del. 1988).

47. Potter v. State, 547 A.2d 595, 599-600 (Del. 1988).

48. 10 Del. C. § 3925; 11 Del. C. §§ 5105, 5307, 5919; Supr. Ct. R. 68.

48.1. Black v. Div. of Child Support Enforcement, 686 A.2d 164, 168-69 (Del. 1996).

 48.2. Black v. Div. of Child Support Enforcement, 686 A.2d 164, 169-70 (Del. 1996).

 © 2010 David L. Finger