Appointed Counsel Vol. 4: Pending Grand Jury Claims

This episode of Appointed Counsel deals with how to get paid when a case in General Sessions court is bound over to the grand jury.   As an attorney appointed to represent a defendant in one of these cases, one may question whether or not they may be compensated for the extra time.  The short answer is yes, and Joe Byrd is here to explain the details. This podcast is intended for attorneys.

Produced by David Stripling, Administrative Office of the Courts

Transcript

00;00;02;13 - 00;00;32;09
Host, Joe Byrd
Welcome to Appointed Counsel podcast presented by Tennessee Court Talk. For those involved in indigent representation, I'm Joe Byrd, lead attorney for the Indigent Services team of the Tennessee Administrative Office of the court. Episode four pending grand jury claims. In General Sessions Court, whenever an attorney is representing an indigent defendant, generally that case is going to end in General Sessions Court with a plea agreement, a dismissal, or the case is going to be bound over to the grand jury.

00;00;32;10 - 00;01;00;05
Host, Joe Byrd
Grand jury will consider if it's going to indict or present a no bill under Tennessee Supreme Court Rule 13, section six, a five, and the policy that's approved by the court and the administrative office of the courts. That 180 day time period to file a claim on those general sessions cases begins to run on the file stamped date of the order or final judgment, in which the general Sessions case concludes.

00;01;00;08 - 00;01;21;22
Host, Joe Byrd
The question we want to answer today is what happens when the case is bound over to the grand jury? But the district attorney has yet to seek an indictment from the grand jury, and particularly the defendant is incarcerated. See, the issue could be that there could be other work that the attorney needs to do on that case, particularly as it's going to relate to bail issues.

00;01;21;23 - 00;01;49;14
Host, Joe Byrd
If the indictment isn't issued in a reasonable period of time, the court may want to look at, does the person need to stay incarcerated or how much bail should actually be reasonable in those circumstances? Tennessee Supreme Court Rule 13, section one E5, provides that appointed counsel continues to represent an indigent party throughout the proceedings, including any appeals, until the case is concluded or counsel has been allowed to withdraw by a court.

00;01;49;16 - 00;02;15;21
Host, Joe Byrd
Now here's a sticky wicket. Basically, the appointment order in general sessions can carry through the criminal court, even up to the appeals court, up to a rule 11 application with the Supreme Court. But really many courts in most jurisdictions in the criminal court, they will have a separate hearing and make a separate appointment. And that works out generally because some attorneys prefer to work in the General Sessions Court and other attorneys prefer to work in the criminal court.

00;02;15;21 - 00;02;33;19
Host, Joe Byrd
But there can be and there are plenty of attorneys who do enough work in both courts, and they might even follow the case all the way up. Well, the problem is, if the case is bound over and there's a delay for the grand jury, well, then the individual is sitting there incarcerated. What does the attorney do there? Under the appointment of the general Sessions Court?

00;02;33;21 - 00;02;53;08
Host, Joe Byrd
Who has jurisdiction? Can appointed attorneys be compensated for work on a case that is pending a grand jury, if they've already filed their claim for the general Sessions case in order to stay within the 180 days? Well, the answer is generally yes, and I would encourage anyone who takes a case once the case is bound over to the Grand jury to go ahead and file the claim.

00;02;53;10 - 00;03;18;04
Host, Joe Byrd
Now, it's a technical matter. We will not reject those who have work in their claim for the general sessions. Claim that goes beyond the bind over, but that actually should either go separately into the circuit criminal court or a separate pending grand jury claim. Here's how it works. The grand jury operates within the egis of the circuit or criminal court, according to the case of state v Penley.

00;03;18;06 - 00;03;49;06
Host, Joe Byrd
However, the district attorney has the discretion to proceed with prosecution. So that obviously means that there is a discretion about when or if a case is going to be presented to the grand jury that the district attorney makes in questions of bail pursuant to Tennessee Code 40, dash 11 104. The General Sessions Judge or magistrate has authority to determine conditions of bail at any time prior to, or at the time the defendant is bound over to the grand jury, but not after.

00;03;49;13 - 00;04;15;03
Host, Joe Byrd
So who has the authority after the case is bound over? Well, the criminal or circuit court has authority on bail issues. Any time prior to the conviction or thereafter. So the criminal or circuit court takes up bail questions after the case is bound over. Even when an indictment is not issued, that court, the criminal or circuit court should appoint the attorney with an appointment order for the purposes of the bail proceeding.

00;04;15;09 - 00;04;35;23
Host, Joe Byrd
Generally, a separate appointment isn't required by us at the agency, but in this case, we do ask for a separate order that appoints the attorney for the bail proceeding so that we can keep clear the compensation going for General Sessions, the bail matter during the pending grand jury and the criminal case. The appointment order can cover the bail proceeding only.

00;04;35;23 - 00;05;08;26
Host, Joe Byrd
Or it might be that the attorney will stay on the case in the criminal court. If so, well, then that one appointment order will cover. However, if the attorney is appointed only for the purposes of the bail proceeding, a claim can be filed for the time that is in that proceeding, make sure that it's in 180 days of the final order of the bail proceeding, the order of the court regarding bail, or maybe an order granting permission for the attorney to withdraw will suffice, is the final dispositional order of the claim that's related to the bail proceeding?

00;05;08;28 - 00;05;32;26
Host, Joe Byrd
Attorneys should refer to the underlying charges in selecting the case type when they're filing their claim in a cab. Be aware that if you are appointed to the case, either in the General Sessions Court or and in the Criminal Court, you might get a potential duplicate response back from a cab. Don't worry, we'll work with you. Just go ahead and explain that you were appointed under a separate order for the bail proceeding.

00;05;32;29 - 00;05;56;10
Host, Joe Byrd
Now, if the attorney was appointed to continue on the case and within the Criminal court, then the time that the bail proceeding should be included with the claim in the circuit of criminal court case. But here's the trick. If the delay in the issue of the indictment appears that it's going to extend beyond 180 days from the bail proceeding, go ahead and file a claim for the bail proceeding.

00;05;56;13 - 00;06;21;26
Host, Joe Byrd
Get an order that allows you to withdraw and then have the criminal court reappoint you to the case in the criminal court. On our website in courts.gov. There is a sample order of a bail proceeding appointment order. Please take a look if you do this work. I know this has been a source of confusion for many attorneys appointed to clients who have been incarcerated after the case has been bound over, but no indictment has issued.

00;06;21;28 - 00;06;33;08
Host, Joe Byrd
For more information, take a look at everything that we have on tncourts.gov

00;06;33;11 - 00;06;34;21
Host, Joe Byrd
This week.