April 6, 2004
COMPLAINTS ABOUT STATE AND FEDERAL PUBLIC DEFENDERS AND PROSECUTORS
By: Sarah Black, Legislative Fellow
You asked what alternatives an individual has when he believes he has been improperly represented by state or federal public defenders and there has been improper conduct by state or federal prosecutors.
If an individual believes he has been improperly represented by a public defender or there has been improper conduct by a prosecutor, he may file a complaint to have the attorney removed from office or otherwise disciplined.
In Connecticut, the Public Defender Services Commission oversees public defenders, and the Criminal Justice Commission oversees state's attorneys. An individual may file a complaint with one of these commissions or the attorney's supervisor. Alternatively, he may file a grievance complaint with the Statewide Bar Council.
For federal attorneys, complaints about prosecutors must be made to the Office of Professional Responsibility. Complaints about public defenders must be made to the attorney's supervisor or the court.
Apart from seeking to have the attorney disciplined, the person may appeal the decision of the court. A person whose constitutional rights have been infringed may also file a habeas corpus petition to determine the legality of the sentence imposed in the original case. To target the conduct of a public defender, the individual may claim ineffective assistance of counsel. To target a prosecutor, he may claim prosecutorial misconduct.
If an individual believes there has been improper conduct by a state public defender or state's attorney, the individual may (1) file a complaint with the commission that oversees the attorney or with the attorney's supervisor or (2) file a grievance claim.
Public defenders are subject to discipline by the Public Defender Services Commission and the chief public defender. The chief public defender serves head of the commission but also has independent disciplinary powers. Therefore, a defendant who feels he was improperly represented may make a complaint to either the commission or chief public defender.
A public defender who has acted improperly may be removed from office or otherwise disciplined. The commission may remove him from office only after providing him with due notice and a hearing opportunity (CGS § 51-293(f)).
A public defender may also be suspended without pay. For a suspension of less than 15 days, the chief public defender may suspend a subordinate public defender for cause. The suspended public defender may request review by the commission. Imposition of a suspension of more than 15 days requires due notice and a hearing by the commission (CGS § 51-293(g)).
The Criminal Justice Commission has the power to discipline state's attorneys. Supervising state's attorneys may also discipline subordinate attorneys. Thus, complaints about state's attorneys may be directed to this commission or the supervising attorney.
The commission or supervising attorney may reprimand, demote, or suspend a state's attorney for just cause such as unethical or intentional misconduct. The suspension may be for up to 15 days, with or without pay. Before imposing any of these punishments the commission or supervising attorney must give the state's attorney notice and a hearing (CGS § 51-278b(c)).
Any person who feels that his attorney has acted improperly may file a grievance complaint with the Statewide Bar Council. The Judicial Branch has produced a plain language pamphlet outlining grievance procedures entitled “Attorney Grievance Procedures in Connecticut: Your Rights as a Complainant in the Grievance Process.”
Once a grievance complaint is filed, the council must do a preliminary review to determine if the claim has merit. If the council finds merit, it sends the complaint to a grievance panel for an investigation and possible hearing to determine if there is probable cause that the attorney violated the Rules of Professional Conduct. If probable cause is found, the Statewide Grievance Committee must conduct a public hearing and may reprimand, sanction, suspend, or disbar the attorney (CGS §§ 51-90–51-90h).
The Connecticut Supreme Court has held that the committee has authority to discipline state's attorneys despite a potential separation of powers issue, as the committee is in the judicial branch while state's attorneys are members of the executive branch (Massameno v. Statewide Grievance Comm., 234 Conn. 539 (1995)). However, the Court noted, depending on the specific issue, some actions of the grievance committee could be invalid as violating the separation of powers.
Similar to state public defenders and prosecutors, complaints about federal public defenders and prosecutors must be made to a supervisor or the appropriate oversight body.
Federal public defenders may be removed from office by the circuit court for incompetency, misconduct in office, or neglect of duty (18 USC § 3006A(g)(2)(A)). The Judicial Council of the 2nd Circuit, which approves Connecticut's public defender plan, states that complaints about officials other than judges should be directed to a supervisor. If the complaint cannot be resolved by going to a supervisor, then the complainant may make a complaint to the court (Rules of the Judicial Council of the 2nd Circuit Governing Complaints against Judicial Officers Under 28 USC § 351 et seq.).
The Office of Professional Responsibility in the Department of Justice oversees federal prosecutors. This office investigates complaints of professional misconduct made against prosecutors and routinely undertakes investigations based on complaints made by defendants. If the office finds that an attorney has acted improperly, it must forward the results of its investigation and a discipline recommendation to the Office of the Deputy Attorney General or the appropriate supervisor to impose punishment (www.usdoj.gov/opr).
If the individual wants to challenge the outcome of the case rather than focus on reprimanding the attorney, he can file a habeas corpus petition to test the legality of the imposed sentence. In order to succeed on such a petition, he must show that his constitutional rights were violated. A habeas corpus petition based on a federal case must be filed in federal court. A petition from a state case may be filed in state or federal court. However, under federal law, an individual must exhaust all state remedies before a federal court will hear the petition.
A habeas corpus claim regarding the public defender could be made under a theory of ineffective assistance by one's attorney. Effective assistance by counsel is guaranteed by the U.S. and Connecticut Constitutions. To succeed under an ineffective assistance theory, the petitioner must show the quality of the attorney's work was below an objective standard of reasonableness. Additionally, the petitioner must show there was a reasonable probability that the attorney's substandard work affected the outcome of the case.
A habeas corpus claim directed at the prosecutor could be made under a theory of prosecutorial misconduct. Prosecutorial misconduct implicates the due process clause of the Constitution and the Connecticut court's inherent supervisory authority. As with ineffective counsel, to succeed on a claim of prosecutorial misconduct, the petitioner must show the conduct actually prejudiced the defense.