Colorado Defense Bar v. Suthers is an NACDL-supported lawsuit filed in the United States District
Court in Colorado in December, 2010, by pro bono counsel at Morrison & Foerster
LLP. The lawsuit seeks to invalidate Colorado Revised Statute § 16-7-301(4) which requires a
defendant to meet with a prosecutor before being assigned counsel. In Rothgery v. Gillespie County,
554 U.S. 191, 213 (2008), the United States Supreme Court held that a
defendant’s right to counsel under the Sixth Amendment to the United States
Constitution attaches at “a criminal defendant’s initial appearance before a
judicial officer, where he learns the charge against him and his liberty is
subject to restriction.”
Colo. Rev. Stat. § 16-7-301(4)
provides that, in misdemeanors, petty offenses and traffic offenses an indigent
defendant’s “application for appointment of counsel and the payment of the
application fee shall be deferred until after the prosecuting attorney has
spoken with the defendant”. It then requires the prosecuting attorney to “tell
the defendant any offer that can be made based on the facts as known by the
prosecuting attorney at that time.” It also permits the prosecuting attorney to
“engage in further plea discussions about the case” and charges the prosecutor
with advising the defendant that they have “the right to retain counsel or seek
appointment of counsel.”
The Colorado Criminal
Defense Bar and the Colorado Criminal Justice Reform Coalition allege that the
statute
violates the Sixth and Fourteenth Amendments to the United States Constitution
by deferring the appointment of counsel for indigent criminal defendants until
they engage in discussions with prosecuting attorneys regarding potential plea
offers.
Pleadings
Second Amended Complaint
Amended Complaint
Defendant's Motion to Dismiss Amended Complaint
Plaintiff's Response to Defendant's Motion to Dismiss