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Case Name In re: Justin Holcombe PD-VI-0001
Docket / Court Super. Ct. Crim. No. 448/2012 (STT) ( State Court )
Additional Docket(s) Super. Ct. Crim. No. 091/2014 (STT)  [ 14-91 ]
State/Territory Virgin Islands
Case Type(s) Indigent Defense
Case Summary
On January 23, 2015, attorney Justin K. Holcombe appealed a Superior Court order appointing him to involuntarily serve as counsel to an indigent criminal defendant at the Supreme Court of the Virgin Islands. The plaintiff, a member of the Virgins Islands Bar, alleged that the Superior Court’s ... read more >
On January 23, 2015, attorney Justin K. Holcombe appealed a Superior Court order appointing him to involuntarily serve as counsel to an indigent criminal defendant at the Supreme Court of the Virgin Islands. The plaintiff, a member of the Virgins Islands Bar, alleged that the Superior Court’s practice of involuntarily conscripting attorneys to represent indigent defendants in criminal cases violated the Virgin Islands Legislature. The plaintiff was selected as the fourth counsel to nominally represent Ralph Edwards Titre on December 30, 2014, following three sequentially appointed counsels, all of whom were permitted to withdraw as counsel. The plaintiff, subsequently appointed as counsel by Superior Court Judge Adam G. Christian, filed a notice of appeal to the Supreme Court on January 23, 2015. The plaintiff alleged that the Superior Court erred when it allowed the third counsel to withdraw. While there is no complaint available, therefore the specific reason is unknown, the previous two attorneys were allowed to withdraw after election to the superior court and due to relocation reasons, respectively. The third counsel also moved to withdraw on December 5, 2014, stating that his law firm had received three indigent appointments, two of which were first-degree murder cases within less than two months. The plaintiff also alleged that its appointment process violated 5 V.I.C. section 3503(a). On February 2, 2015, the plaintiff also filed a motion to the Superior Court to stay its appointment pending the appeal filed January 23, 2015. While the Superior Court denied the motion for a stay, they found that the plaintiff’s legal situation made it difficult for the plaintiff to represent Titre, therefore, a new appointment of counsel was appointed on May 20, 2015. While the plaintiff was relieved of the representation, the plaintiff contended that his claim regarding the Superior Court’s compliance with section 3503(a) was not moot and decided to proceed with the suit on its merits. Specifically, the plaintiff’s mandamus relief requested that the Superior Court implement section 3503(a) by establishing a panel of attorneys who have volunteered to represent indigent defendants, and limit the appointment of private counsel to 15%.

Meanwhile, in separate case, attorney Robert L. King filed a notice of appeal to the Virgin Islands Supreme Court on July 27, 2015 after being conscripted to represent Rosemary Sauter Frett, who was charged with numerous crimes on February 26, 2014, including violation of Criminally Influenced and Corrupt Organizations Act, embezzlement, and obtaining money by false pretenses. King was the eighth appointed attorney by the Superior Court of the Virgin Islands to represent Sauter following seven previous counsels. The Court initially appointed the Office of Territorial Public Defender as Sauter’s counsel, but a private attorney voluntarily entered as retained counsel and later withdrew. The Superior Court subsequently granted the five counsels afterward to withdraw for various reasons. The seventh appointed counsel represented Sauter for seven months before Sauter filed a pro se motion questioning the counsel’s qualifications to represent Sauter. This resulted in the appointment of King on July 9, 2015, by Judge Denise M. Francois. In response, King alleged violation of section 3503 in the Superior Court’s appointment procedure and argued that the seventh counsel failed to provide good cause for withdrawal in his appeal filed July 27, 2015. King also requested that the court accept Holcombe’s arguments as his own, and to treat his own brief as a writ of prohibition and mandamus request if the Superior Court lacked jurisdiction over his appeal. On September 29, 2015, Judge Francois contended that the requirements for King’s mandamus or prohibition were not satisfied, and questioned whether plaintiff King could immediately appeal the July 9, 2015, appointment order.

On November 10, 2015, the plaintiff’s case and King’s appeal were consolidated for an oral argument as they both sought a prohibition against the judges who issued their respective appointments as well as a writ of mandamus enjoining the Superior Court of the Virgin Islands. Holcombe and King alleged that the process in which the Superior Court sequentially appointed representatives for indigent defendants through an alphabetical list of all members of the Virgin Islands bar violated Virgin Islands Legislature. Under Virgin Islands Legislature 5 V.I.C. 3503(a), the appointment of counsel to indigent defendants must be made from “a panel of private attorneys” when the Office of the Territorial Public Defender is unable to undertake their representation with respect to the defendant’s Sixth Amendment right to counsel. However, they argued that while statutory language, enacted in 1974, states that appointment must be made from “a panel of private attorneys,” the panel cannot reasonably include all members of the Virgin Islands bar and force unwilling attorneys to represent. The case was assigned to Judge Rhys S. Hodge.

The court considered the interpretation of the statutory language “a panel of private attorneys,” in deciding the merits of the mandamus petition. The court found that the Superior Court interpreted 5 V.I.C. 3503(a) as requiring all private attorneys to accept indigent defendant conscriptions, holding that “all attorneys practicing law in the U.S. Virgin Islands have a responsibility to represent indigent defendants in criminal cases.” However, Judge Hodge concluded that involuntarily appointing private attorneys from a list of all members of the Virgin Islands Bar violated the Virgin Islands Legislature. Specifically, he contended that the phrase “panel of private attorneys,” contemplated a smaller subset of a larger group, therefore did not encompass every private-sector member of the Virgin Islands Bar. On November 25, 2015, Judge Hodge decided that the Superior Court had erred when it appointed Holcombe and King involuntarily without first establishing a panel of attorney volunteers and appointing from that panel and ordered the Superior Court to appoint counsel for indigent defendants in a manner that complies with the Virgin Island Laws by March 1, 2016. On the same day, the court vacated the Superior Court’s December 30, 2014, and July 9, 2015, appointment orders. However, attorneys other than the plaintiffs remained subject to involuntary appointments until March 1, 2016. The case is closed.

Since then, the Superior Court proposed a new rule for the appointment of attorneys to represent indigent defendants February 2, 2016, where private attorneys may apply to be on defense panels and be paid an hourly fee.

Averyn Lee - 06/08/2019


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Issues and Causes of Action
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Issues
Plaintiff Type
Private Plaintiff
Causes of Action
Defendant(s) Superior Court of Virgin Islands
Plaintiff Description Two Virgin Island attorneys conscripted to represent indigent defendants in criminal cases
Class action status sought No
Class action status granted No
Filed Pro Se Unknown
Prevailing Party Plaintiff
Public Int. Lawyer Unknown
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filing Year 2012
Case Closing Year 2016
Case Ongoing No
Additional Resources
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  Will the Virgin Islands finally end the practice of conscripting non-qualified lawyers to represent the indigent accused?
Sixth Amendment Center
Date: May 18, 2017
By: David Carroll and Phyllis Mann (Sixth Amendment Center)
[ Detail ] [ External Link ]

  Securing Reasonable Caseloads: Ethics and Law in Public Defense
Date: 2011
By: Norman Lefstein (Indiana University--Indianapolis Faculty)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Date: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
Date: 2009
By: Cara Drinan (Columbus School of Law, Catholic University Faculty)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

  Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Date: May 7, 2007
By: Vidhya K. Reddy (Washington University in St. Louis Law Student)
[ Detail ] [ PDF ]

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