NAVAJO POLICY ON APPOINTMENT OF COUNSEL & INDIGENCY
These rules were approved by the Judicial Conference of the Navajo Nation on August 21, 1992 (Resolution No. 92AUG01) and by the Judiciary Committee of the Navajo Nation Council on October 2, 1992 (Resolution No. JCO-13-92). They were adopted by the Navajo Nation Supreme Court on June 25, 1993; they became effective on October 2, 1993. The policy was revised on August 15, 1994.
I. AUTHORITY AND CONSIDERATIONS
1.1 Appointment of Counsel. The Navajo Nation Bill of Rights gives the Courts of the Navajo Nation the discretion to determine when counsel shall be appointed for criminal defendants. 1 N.T.C. § 7 (1986 Supp.). Neither the Navajo Nation Bill of Rights nor the Indian Civil Rights Act of 1968 require the appointment of counsel in criminal cases, and no person is entitled to appointed counsel where that person will not be imprisoned or jailed for a criminal offense.
1.2 Authority for Policy. The Chief Justice of the Navajo Nation, pursuant to 7 N.T.C. § 371 (1986 Supp.), has the authority to administer the courts and supervise the work of the judges of the Navajo Nation, including the power to promulgate policies for the appointment of counsel and eligibility for such appointments.
1.3 Scope. This policy shall apply only to criminal actions and criminal traffic matters where there are potentials for incarceration of defendants. It shall not apply to delinquency and status matters in the family courts, which involve separate considerations. In those cases, the family court shall consider the appointment of counsel for a child in a delinquency proceeding to determine if detention is required or such is in the interest of the child.
1.4 Objective. This policy requires the appointment of counsel for indigent criminal defendants only where “there is a real likelihood that incarceration may follow conviction,” and the defendant is indigent. American Bar Association Project on Standards for Criminal Justice. “Indigent” shall mean that the defendant lacks adequate income, property or personal resources to secure the services of counsel who can reasonably provide an adequate criminal defense. The trial judges should consider removing minor offenses from the court system where appropriate, through encouraged deferred prosecution plans, pretrial or presentence diversion, or use of the Navajo Peacemaker Court.
1.5 Purposes. The purposes of this policy shall be to (a) afford fair trials and dispositions pursuant to the Navajo Nation Bill of Rights, (b) assure speedy and effective justice for both criminal defendants and the public of the Navajo Nation, and (c) balance the rights of victims and criminal defendants to deter crime and make victims whole.
1.6 Approach. Part Two of this policy addresses the problem of how to determine when “there is a real likelihood” that the court will impose incarceration in its sentence. That process requires the court and probation and parole staff to obtain reliable information to determine (a) the existence of multiple charges, (b) the nature and severity of the alleged criminal act, and (c) the prior offense record of the defendant. Part three of this policy addresses when a person is “indigent” and thus cannot afford the services of an attorney.
II. ASSESSMENT OF THE LIKELIHOOD OF INCARCERATION
2.1 Advice of Rights. Each district court shall establish and implement a system for the court staff to advise criminal defendants of their rights, including the required advice of rights at plea and rights at the time of entering a plea of guilty. That advice shall include a warning that a defendant is not entitled to the appointment of counsel unless, (a) there is a reasonable or real likelihood the court will impose incarceration in its sentence, and (b) the defendant is indigent or without adequate resources to secure the services of reasonably effective legal counsel, given the nature of the offense.
2.2 Presumptions. The court may presume that a given offense is likely to require incarceration where:
a. The offense involves alleged serious personal injury to a victim; or victims, by multiple charges;
b. The offense would constitute an act of serious domestic violence, requiring incarceration to protect a victim from future harm;
c. Probation or parole violations and serious contempt;
d. The offense involves damage to or a loss of property with a value in excess of $1,000, and restitution is an inadequate remedy for reasons other than the financial condition of the defendant; or
e. The court finds that incarceration may be required to deter future criminal conduct by the defendant, prevent future injury to victims, protect the public, or make the defendant’s case an important public object lesson for deterrence.
2.3 Assessment of the Nature of the Offense. The district court office of probation and parole shall receive incident, arrest or other reports from the Navajo Nation police or the Office of the Prosecutor, to determine the nature and severity of the alleged offense. Without any disclosure of the facts contained in such reports, the office of probation and parole shall advise the court as to whether it would, deeming all facts in such reports to be true, recommend a sentence of incarceration upon a finding of guilty. The court shall require the Navajo Nation police and Office of the Prosecutor to file such reports, and the district Office of Probation and Parole may advise the court of any failure to file information regarding the offense, or a lack of cooperation in the process of assessing the nature and seriousness of the offense.
2.4 Assessment of the Defendant’s Criminal History. The district court office of probation and parole shall receive a criminal history or “rap sheet” on defendants whose alleged offenses appear to require incarceration. Without any disclosure of the criminal history of a defendant, or the existence of a history of prior offenses, the office may advise the court that incarceration may be recommended as the result of a review of the defendant’s circumstances. The office may receive and consider any other information regarding the defendant’s history of criminal activity, or danger to self of others, which, may require incarceration. The court shall require the Navajo Nation police and Office of the Prosecutor to file or provide information regarding the defendant’s criminal history, proclivity to violence, or mental condition.
2.5 Determination of the Right to Counsel—When. At the time of arraignment, if there is sufficient information to determine the nature and seriousness of the alleged offense(s) from complaints, police reports or otherwise, the Office of Probation and Parole or the prosecutor may advise the court that they will or will not recommend incarceration of the defendant in the event of a finding of guilty. If a recommendation cannot be made without obtaining further information (i.e. the defendant’s criminal history or pattern of conduct), the probation and parole officer or prosecutor may so advise the court. If there is sufficient information before the court, it may determine whether or not to appoint counsel. If the information is insufficient, the court may set bail and conditions of release and continue determination of the appointment of counsel to a future date.
2.6 Speedy Trial Rights. Where the information before the court is insufficient to determine whether the charge and circumstances underlying it require the appointment of counsel, and the defendant desires the appointment of counsel, the defendant shall be deemed to waive the time required to make the determination as part of the time computed to determine the right to a speedy trial.
2.7 Diversion. At any stage in the proceedings, the court may decline to appoint counsel where (a) it grants a motion by the prosecution to dismiss the charge, (b) it approves a deferred prosecution plan, (c) it approves diversion of the defendant or the defendant’s case to a program of presentence diversion, (d) the matter is the subject of proceedings in the Navajo Peacemaker Court without counsel, or (e) the action is disposed of without the likelihood of incarceration.
2.8 Appointment of Counsel. Upon a finding by the court that there is a likelihood the defendant will be incarcerated following a possible finding of guilt, the court shall appoint counsel from the Office of the Navajo Public Defender or the lists of members of the Navajo Nation Bar Association. The assignment must be random, and impose the burden of pro se representation on an equitable basis. The court should give due consideration to the geographic distance of counsel from the place of trial. There shall be no discrimination in favor of or against any member of the bar, that person’s firm or that person’s employer. In exceptional circumstances, the court may appoint counsel on the basis of that person’s criminal law expertise or resources (income and facilities) to serve in a protracted trial. The court should permit firm appearances on behalf of defendants to address scheduling difficulties, and conduct telephonic pretrial proceedings to accommodate travel difficulties.
2.9 Setting Trial Date. Notwithstanding a further review of the defendant’s eligibility for appointed counsel, the district court shall set a trial date for the defendant’s cause at the time of arraignment. The trial of the case may be continued to permit the defendant a reasonable opportunity to prepare for trial, with or without appointed counsel. All counsel shall be required to take prompt and reasonable action to prepare for trial, and any lack of cooperation on the part of a defendant is not, of itself, a ground to continue the trial of the matter. As a condition of the appointment of defense counsel, each defendant has the duty to cooperate with that counsel for the preparation of a defense. A defendant has a right to only a reasonable, opportunity to prepare for trial, and the right may be waived by noncooperation.
2.10 Presentence Report. In any action where incarceration is a likely sentence, and there is a finding of guilt by plea or trial, the court shall require the preparation and filing of a presentence repot for consideration. The defendant or counsel shall be provided a copy of the report and it shall be included in the court record.
2.11 Sentence. Where the court waives the imposition of a sentence of incarceration, it may not thereafter impose any such sentence.
2.12 Payment for the Services or Expenses of Counsel. The court may, as a part of its sentence, require a defendant to contribute to the cost of defense services or expenses of the defense, where the court finds that the defendant has the means to do so without compromising his or her ability to provide for necessities of life for self or family. Orders requiring payments shall be a civil judgment, and they are payable after satisfaction of any order of payment of restitution to a victim.
2.13 Authority to Control the Course of Proceedings. The court has the inherent authority to control the progress of proceedings, and it may take action to address any delay or impediment caused by noncompliance with this policy; by dismissal of the action for failure to prosecute, bench warrant against a defendant for failure to obey conditions imposed by the court, sanctions against prosecution or defense counsel, orders to members of the district court staff, or otherwise.
III. SENTENCING ALTERNATES
3.1 Presumption of Indigency. Following a determination that there is a real or reasonable likelihood that incarceration may follow a criminal conviction, a defendant shall be presumed eligible for appointed counsel if he or she is an eligible participant of any program for public assistance to indigents, which is administered, by the Navajo Nation, a State or the United States. Such programs include General Assistance, Aid to Dependent Children, Food Stamps, Medicaid, Supplemental Security Income (SSI), or the OASDI program of the Social Security Administration.
3.2 Eligibility. The standards of indigency are uniform, and indigency other than public assistance eligibility shall be determined on the basis of prevailing U.S. Department of Health and Human Services poverty guidelines. The chief justice may, from time to time, utilize other standards to determine indigency or the ability of persons to provide for the necessities of life.
3.3 Initial Standards. In addition to eligibility based upon standard 3.1, the standards to determine indigency shall be 125% of the federal poverty level, as follows:
Where families have more than eight members who are dependent upon the support of the defendant, the additional amount added to income for each family member is $258 per month or $3,000 per year.
3.4 Eligibility. Any defendant who is a participant in a program under standard 3.1, or has income the equivalent of or less than the income and family size guidelines in standard 3.3, is indigent and eligible for the appointment of counsel.
3.5 Other Applicants. Any applicant who does not meet the requirements of standards 3.1 or 3.3 may be eligible for the appointment of counsel where the court determines indigency based upon (a) gross income, (b) available assets, (c) deductions from income for necessities, and (d) personal expenses for necessities.
3.6 Gross Income. Gross income is the total of salary, wages, earnings from personal services or sales, and all other sources of income. Seasonal income should be considered on an annual basis. Gross income also includes earnings or monies from other sources, including income from the sale of crafts, casual labor, Bureau of Indian Affairs Individual Indian Monies (IIM) accounts, Social Security benefits, union funds, veteran’s benefits, support from absent family members, public or private employee pensions, dividends, interest payments, rents, estates, trusts, or gifts.
3.7 Contributions for Defense Fees and Costs. The court may assess monthly contributions for the cost of defense based upon gross income, including the income of a spouse or family members, where the spouse or family member is not the victim of the alleged offense.
3.8 Allowable Deductions from Gross Income. Deductions from determinations from gross income for necessities shall be for the following expenses only:
d. Child support and maintenance of spouse by court order
e. Child care expenses
f. Medical expenses
g. Nursing home expenses
h. Reasonable transportation for employment or medical treatment.
The court may consider any unusual and necessary expense for the defendant or the defendant’s family, which would prevent the defendant from being able to pay for the cost of private counsel.
3.9 Assets. The court shall include the value of assets, which may be converted into cash within a reasonable period of time without causing substantial hardship or jeopardizing the defendant’s ability to maintain a home or employment. Those assets include, but are not limited to, cash on hand, checking or savings accounts, stocks, bonds, certificates of deposit, tax refunds, or accounts payable (i.e. reasonable expectancies of payment). The value of real property owned by the defendant shall be assessed in terms of the amounts, which could be raised by a loan on the property under prevailing credit standards. Exempt property under 7 N.T.C. § 711 shall not be considered.
3.10 Allegations of Financial Profit. In any case where the defendant is charged with an offense, which alleges the gain of a financial profit, by the violation of any provision of Title 17. Navajo Tribal Code, or any criminal statute prohibiting the receipt of a personal benefit by illegal means, the defendant shall be presumed to have assets or income which is sufficient to provide for the cost of a legal defense. This presumption may be rebutted by a showing by the defendant that he or she lacks financial resources which are sufficient to provide for the cost of an adequate defense, based upon standards for the adequacy of counsel in criminal matters and these indigency standards.
3.11 Sale or Conversion of Assets. The court may require a defendant to sell or convert the following assets into cash to pay for criminal defense; bank accounts, stocks, bonds, notes and other redeemable paper, jewelry, Navajo arts and crafts, real estate, guns, recreational equipment, nonessential household goods, and any other asset the court may determine is reasonably available to sell, pledge, pawn or lease to contribute to the cost of representation or retain private counsel.
3.12 Financial Statement. Any defendant who claims the right to the appointment of counsel, or any defendant being considered for the appointment of counsel under standard 3.3 or 3.4, shall submit a sworn financial statement to determine eligibility for the appointment of counsel. The form shall advise the defendant of the criminal penalties for the making of a false sworn statement or a false official statement, including the penalties of perjury or withdrawal of counsel, if false, incomplete, or misleading information is presented. There is an obligation by defendants to disclose all sources of income, all assets, which the defendant owns or may derive financial benefit from, all sources of financial support and any information required to accurately assess the defendant’s indigency.
3.13 Duties of the District Office of Probation and Parole. The district office of probation and parole shall determine the defendant’s indigency through the receipt of information, which shows the defendant’s financial status, including all information regarding the receipt of public benefits under standard 3.1, income under standard 3.3, or financial condition under standard 3.5. The steps are to assess indigency are (a) eligibility for public benefits, or (b) family income in accordance with poverty guidelines, or (c) other income, expenses, liabilities and assets which may make the defendant eligible for the appointment of counsel.
3.14 Verification of Information. The district office of probation and parole may verify any information provided by the defendant from any source, and may require the defendant to provide any document to verify information provided. Proof of income, assets or expenses includes, but is not limited to, bank statements, statements from employers, tax returns or income reporting forms, statements or receipts for medical expenses, nursing home expenses, child support or maintenance (alimony) payments, rent or mortgage receipts or statements, trader pawn slips, records of monies receivable, or documents which show the receipt and amounts for unemployment, welfare or other social security benefits. The defendant may be required to execute necessary releases, Privacy Act authorizations or other documents required to verify information. The court may enter orders for the production of information regarding eligibility. The district office of probation and parole may determine whether to require verification of any matter, or to conduct random verification checks following warnings of the penalties for providing false, misleading or incomplete information.
3.15 Self-Incrimination. No defendant who is charged with providing false, misleading or incomplete information may claim a denial of the right against self-incrimination following any charge or penalty for such conduct. Upon making application for appointed counsel, or agreeing to be considered for the appointment of counsel, the defendant is deemed to have waived the right to self-incrimination by the act of providing information regarding him or her indigency.
3.16 Manner of Determining Representation Cost. The district court may, upon a consideration of the defendant’s assets, income, liabilities and expenses, make a determination of the amount of income or assets, which are available for the payment of the cost or fees of representation. Any such assessment may be enforced as a civil judgment by the court.
3.17 Revision of Indigency Standards and Forms. The chief justice may, in his sole discretion, revise any formula to determine indigency by instruction of the district court. The chief justice may approve any form to implement these standards, and he attached form is hereby adopted as the official form required to implement these standards.
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