Colorado Criminal Defense Bar v. Hickenlooper

10-cv-02930-JLK (D. Colo.)

Filed by pro bono counsel at Morrison & Foerster LLP, this lawsuit sought to invalidate Colorado Revised Statute § 16-7-301(4), which required a defendant to meet with a prosecutor before being assigned counsel. In Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008), the U.S. 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.”

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Colo. Rev. Stat. § 16-7-301(4) provided 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 alleged 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.

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