State v. Handson

State v. Handson  (94-634); 166 Vt. 85; 689 A.2d 1081

[Filed 13-Dec-1996]



       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press. 


                                 No. 94-634


State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                           District Court of Vermont,
                                                  Unit No. 2, Chittenden Circuit

Carl Handson                                      June Term, 1996


Dean B. Pineles, J.

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Donal F.
  Hartman, Jr., Assistant Attorney General, Waterbury, for plaintiff-appellee

       Robert Appel, Defender General, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.   With this decision we resolve the third case in a recent
  trilogy of appeals by the Office of the Defender General, all seeking
  relief from trial court orders to pay for certain services.  See State v.
  Batchelder, 7 Vt. L.W. 172 (1996); State v. Lizotte, No. 96-154 (Vt. July
  26, 1996) (unpublished mem.).  We address an issue left open by State v.
  Wool, 162 Vt. 342, 648 A.2d 655 (1994): given that indigent defendants who
  choose to represent themselves are entitled under the Public Defender Act,
  13 V.S.A. § 5231(2),(FN1) "to public

 

  funding for . . . necessary expenses" related to their defense, Wool, 162
  Vt. at 348-49, 648 A.2d  at 660, what agency of the state must pay the bill? 
  The Defender General argues that the Judiciary is financially responsible
  for such expenses.  We agree with the trial court, however, that the costs
  are properly borne by the Defender General.  We affirm the court's order in
  most respects, but conclude that, in this case, the bill for telephone
  calls made by defendant from Northwest State Correctional Facility (NSCF)
  should be paid by the Department of Corrections.

       Defendant, who is not a party to this appeal, was charged with
  multiple counts of lewd and lascivious conduct with a child, see 13 V.S.A.
  § 2602, and multiple counts of sexual assault on a minor under sixteen
  years of age, see id. § 3252(b)(1).  Pending trial, he was detained at
  NSCF.  Although defendant was entitled to the services of a public
  defender, he chose to represent himself.  In reliance on our decision in
  Wool, the trial court issued several orders relating to defendant's right
  to receive services necessary to the preparation of his defense.  The
  Defender General sought and received permission to appeal the court's order
  that the Defender General pay for defendant's telephone calls related to
  the case, the costs of copying performed by the Department of Corrections,
  and laboratory analysis of a piece of physical evidence.(FN2)  Defendant's
  case was ultimately resolved when he pled no contest to two counts of lewd
  and lascivious behavior with a child.

                                I.

       At the outset, we recognize that payment of services for pro se
  indigent defendants raises serious fiscal concerns for the Defender
  General.  In such cases, the court, not the Defender General, decides what
  expenses are necessary to allow the defendant to mount an adequate defense. 
  See Wool, 162 Vt. at 349-50, 648 A.2d  at 660.  The Defender General
  complains that requiring his office to pay for these expenses while the
  Judiciary has "unfettered control" over

 

  the extent of services presents no incentive to control costs.  He argues
  that financial responsibility for these expenses should be shouldered by
  the same agency that controls them -- that is, the Judiciary.

       Although this cost control argument has some appeal in a time of
  increasing fiscal constraints, we are not persuaded that the Judiciary is
  better suited to pay for the litigation expenses of pro se indigent
  defendants.  The Defender General ordinarily provides for the defense of
  indigent defendants; for example, had this defendant exercised his right to
  assigned counsel, the cost of representation and accompanying services,
  such as clerical support, investigative services, and laboratory tests,
  would have come out of the budget of the Defender General.  We noted in
  Wool that reimbursing a defendant for necessary expenses "fosters sound
  fiscal and public policy, because a defendant would not be required to
  forego pro bono counsel or self-representation simply to obtain associated
  services at the public expense."  Id. at 349, 648 A.2d  at 660.  By waiving
  the right to a public defender, defendant relieved the Defender General of
  a substantial financial obligation.  The Defender General's claim that his
  budget is not sufficient to accommodate these costs is somewhat perplexing. 
  Payment for the services that permit a defendant to exercise the right to
  appear pro se is not an extra expense imposed on the Defender General, but
  a substitute for the expense of representation by counsel.

       The Defender General's concerns would be well-founded if, indeed, the
  courts had "unfettered" discretion to order reimbursement of expenses
  incurred by pro se defendants.  That is simply not the case, however.  Our
  decision in Wool placed a fairly sharp limit on the expenses that a court
  may authorize.  To receive reimbursement, a defendant must show that a
  requested service is necessary to mount an adequate defense.  Id. at
  349-50, 648 A.2d  at 660. Aside from expenses inherent to
  self-representation, such as telephone calls and postage, many services
  would be necessary whether a defendant is pro se or represented by counsel. 
  For example, if a given case requires laboratory analysis or expert
  testimony, that need is the same

 

  whether the defendant is pro se or represented by a public defender.  In
  either case the cost of the service is appropriately allocated from the
  budget of the Defender General.

       In light of this standard of necessity, the argument that courts would
  have a greater incentive to control costs if the Judiciary paid for these
  expenses is logically flawed.  Courts are not free to disallow expensive
  measures for solely budgetary purposes.  The question is whether a
  defendant has demonstrated a need for a requested service, and that
  question should receive the same answer regardless of who pays for the
  service.  Nor, practically speaking, is there any reason to believe that
  shifting financial responsibility to the Judiciary would encourage trial
  courts to exercise greater financial restraint in these decisions.  Trial
  judges bear no more responsibility for the Judiciary's budget than they do
  for the Defender General's budget.

       The Defender General also suggests that the trial court is placed in
  an untenable position in these cases, because determining whether a
  requested service is necessary may require probing defense strategy to an
  unreasonable extent.  Although this is obviously a delicate undertaking, we
  have no reason to believe that trial courts are unable to make such
  determinations.  At any rate, the Defender General does not explain why
  this difficulty would be alleviated if payment for the services was borne
  by the Judiciary.

       Anyone who has ever been responsible for a budget, whether for a
  family, a business, or a large state agency, can understand the frustration
  of bearing financial responsibility for expenses that someone else
  controls.  Nonetheless, we cannot see that this system poses an
  unmanageable problem for the Defender General.  Indeed, the primary expense
  of that office -- the number of needy defendants requiring representation
  -- is entirely out of the control of the Defender General.  And even in
  cases where the defendant is represented by a public defender, the court
  may order the Defender General to pay for a necessary service.  In short,
  the mere fact that the Defender General cannot control the cost of
  providing services to pro se indigent defendants does not mean that those
  costs should instead be borne by the Judiciary.

 

                                     II.

       The Defender General also challenges the trial court's decision that
  two specific expenses incurred by defendant, namely, telephone calls placed
  by defendant from NSCF, and laboratory analysis of three containers of
  petroleum jelly, were necessary to his defense and should be paid for by
  the Office of the Defender General.  The telephone calls and the laboratory
  analysis raise quite different questions, so we address each issue
  separately.

       Prior to the court's order, defendant's access to the telephone at
  NSCF was limited due to his lack of funds.  The system established by the
  Department of Corrections placed a $1.75 surcharge on every call.  Inmates
  who did not have enough money in their accounts to cover the surcharge were
  not able to make calls.  The court recognized that defendant needed some
  telephone access to prepare his defense, and granted him "reasonable access
  to a telephone . . . to be financed by the Office of the Defender General." 
  The Defender General does not dispute the court's conclusion that defendant
  was entitled to some use of the telephone, and in fact encouraged the trial
  court to expand defendant's right to use the telephone to include the right
  to contact witnesses directly.  The Defender General objects, however, to
  paying the surcharge imposed by the Department of Corrections.

       The court made no finding as to the reasonableness of the surcharge,
  although it did note that the charge seemed "exorbitant."  The court heard
  some argument on the issue, but did not hold an evidentiary hearing, and
  finally advised the Department of Corrections and the Defender General to
  resolve the problem themselves.  The telephone bill sent to the Defender
  General by the Department of Corrections apparently included the
  surcharges.  The Department of Corrections filed a brief with this Court
  defending the reasonableness of the surcharge.(FN3)  At oral

 

  argument, however, counsel for the Department admitted that the entire
  telephone system, including the surcharge, has been scrapped.

       Under the circumstances of this case, we agree with the Defender
  General that the cost of the telephone calls from NSCF should be borne by
  the Department of Corrections.  As the Defender General points out, the
  charges are far higher than those incurred by other state agencies,
  including his office and the Attorney General's office.  Indeed, requiring
  the Defender General to pay these charges may violate the statutory mandate
  that those representing indigent defendants be able "to use any state
  technical services and facilities . . . that are available to the
  prosecutor."  13 V.S.A. § 5277.  Moreover, counsel for the Department
  admitted, both at oral argument before this Court and before the trial
  court, that the telephones available to the staff at NSCF are not subject
  to the surcharge.  The surcharge may have been a reasonable part of the
  inmate telephone system.  The discontinuation of the surcharge suggests
  otherwise, but that question, which was briefed by the Department, is not
  the one before the Court.  The issue is whether the Department could impose
  the surcharge on the Defender General in this case.  Its decision to do so
  makes little sense, especially when other telephones were available, and
  both the court and the Defender General had expressed concern about the
  expense.  As the telephone system has been changed, and all parties have
  learned from this experience, we do not expect that the problem will arise
  again.

       Defendant also requested laboratory analysis of containers of
  petroleum jelly offered by the State to corroborate the victim's statement
  that defendant often used petroleum jelly to facilitate penetration. 
  Defendant claimed that he used the petroleum jelly on his paint brushes, to
  keep the bristles soft, and that analysis of the petroleum jelly would
  reveal the presence of paint thinner.  According to defendant, the paint
  thinner in the petroleum jelly would have caused burning and inflammation
  if applied to the skin.  The Defender General is correct that

 

  such evidence would not have conclusively established defendant's
  innocence.  The trial court must be afforded some latitude, however, in
  determining whether a pro se defendant needs a requested service.  Its
  decision will not be disturbed absent a showing that the court abused its
  discretion, or failed to exercise it.  See Hough v. State, 560 N.E.2d 511,
  517 (Ind. 1990) (reviewing trial court's denial of indigent defendant's
  request for abuse of discretion).  Here, the court did not abuse its
  discretion in concluding that defendant demonstrated that an adequate
  defense could not be mounted without the evidence.  As we required in Wool,
  defendant did "demonstrate specifically the purpose and nature," Wool, 162
  Vt. at 350, 648 A.2d  at 660, of the service he sought; if consistent with
  his claim, the laboratory analysis would have undermined the State's
  corroborating evidence.  Although the court could have taken a more
  thorough look at whether the tests were "necessary services," 13 V.S.A. §
  5231(2), its failure to do so was not an abuse of discretion.

       The Defender General complains that the laboratory analysis requested
  by defendant would not have been approved by a representative of his
  office.  The trial court could not be guided by that fact alone, as the
  court, not the Defender General, must decide whether a requested service is
  necessary.  Nonetheless, this assertion does raise questions of equity and
  fairness.  Pro se indigent defendants should not be denied necessary
  services merely because they refused the assistance of a public defender. 
  At the same time, however, they are not entitled to greater assistance than
  defendants who are represented by counsel.  The Defender General is in the
  best position to advise the court as to what services are typically
  provided to indigent defendants who accept assigned counsel.  Here, the
  court appropriately included the Defender General in the proceedings to
  determine what services defendant would receive. Courts facing this issue
  in the future would also benefit from hearing the Defender General's
  opinion, as the court will be better able to put a defendant's request for
  services in context.

       We are not, with this decision, giving the trial courts a "blank
  check" to authorize services for pro se defendants that will be paid for by
  the Defender General.  The budget of that

 

  office is not unlimited; funds that must be expended on behalf of pro se
  defendants will not be available to those defendants who are represented by
  counsel.  The courts cannot simply err on the side of ordering
  reimbursement without giving serious consideration to whether requested
  services are truly "necessary."  We are confident, however, that the courts
  will recognize the need for restraint in this area, and will carefully
  scrutinize requests for services made by pro se defendants.

       That portion of the trial court's order requiring the Office of the
  Defender General to pay for defendant's telephone calls from Northwest
  State Correctional facility is vacated; in all other respects, the order is
  affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice





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                                  Footnotes

FN1.    In 1995, the Legislature amended 13 V.S.A. § 5231(2).  1995,
  No. 178 (Adj. Sess.), § 63.  Under the new provision, "[a]ny such necessary
  services and facilities of representation that exceed $1,500.00 per item
  must receive prior approval from the court after a hearing involving the
  parties."  Id.  The relevant proceedings in this case took place before the
  amendment and are not affected by the change.  Moreover, we see nothing in
  the new provision that affects our conclusion that the Defender General
  must pay for the necessary expenses of pro se indigent defendants.  In
  future proceedings, however, under the terms of the statute, the court must
  give prior approval for any individual expense that exceeds $1500, whether
  the indigent defendant is pro se or represented by a public defender.

FN2.    The court also required the Defender General to provide and
  pay for the services of an investigator.  The Court Administrator, however,
  agreed to bear that expense to ensure that defendant was not denied the
  services of an investigator during the pendency of this appeal.

FN3.    The Defender General has moved to strike the Department's
  brief and the accompanying supplemental printed case on the ground that the
  Department references documents not part of the record below.  Given the
  unusual procedural posture of this case, and the fact that much of the
  record below consists of unsworn representations in court, the
  irregularities in the Department's brief and printed case are not of great
  concern.  As we resolve this issue in favor of the Defender General without
  relying on the extra documents provided by the Department, the motion to
  strike is denied as moot.
      



  ----------------------------------------------------------------------------
                                 Concurring

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-634


State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                           District Court of Vermont,
                                                  Unit No. 2, Chittenden Circuit

Carl Handson                                      June Term, 1996



Dean B. Pineles, J.

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Donal F.
  Hartman, Jr., Assistant Attorney General, Waterbury, for plaintiff-appellee

       Robert Appel, Defender General, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       MORSE, J., concurring.   I concur in the judgment, but write
  separately to suggest another approach to the vexing problem posed by
  criminal defendants who represent themselves. This approach might have
  avoided the fiasco that resulted from defendant's self-directed defense in
  this case.

       The facts of this dispute are a case study of inefficiency occasioned
  by institutional self-interest.  The procedural history reveals the extent
  to which a single criminal case may consume inordinate resources. 
  Defendant elected to proceed pro se and obtained a court order, pursuant to
  State v. Wool, 162 Vt. 342, 648 A.2d 655 (1994), compelling the Department
  of Corrections to provide him certain defense services.  Predictably, the
  trouble then started.

       Within two months, the Department filed a motion for relief from the
  order.  About the same time, defendant requested additional services,
  including expert analysis of certain containers of petroleum jelly,
  additional use of a telephone, and a laundry list of other material

 

  resources to aid his defense.  The trial court solicited the Defender
  General to evaluate defendant's requests and scheduled a hearing.  Counsel
  for the Department, an assistant attorney general representing the
  prosecution, the Defender General, defendant, and defendant's standby
  counsel -- who had been appointed to assist defendant if he so requested --
  attended the hearing. The court ruled that defendant was to be afforded
  reasonable access to telephone service as well as the service of an expert
  to analyze the petroleum jelly, to be paid for by the Defender General. 
  The court also resolved disputes over investigator's services, pens and
  stationery, postage, copying, law books, and recording devices.  Finally,
  the court ordered that all further disputes over services were to be
  referred for mediation to an attorney from the Prisoners' Rights Unit of
  the Defender General's Office, admonishing all concerned that "it will not
  hear any dispute until the parties have made all diligent efforts to
  resolve the conflict."  Neither reason nor good fortune prevailed, and the
  court's admonition was promptly and utterly ignored.

       Within days, the Defender General filed a "Motion for Protective
  Order" objecting to the court's ruling that it pay for ancillary services
  to pro se defendants and arguing that it should not be required to
  "subsidize" the Department's "exorbitant" telephone surcharge.  The
  Department filed a "Motion In Opposition."  Following a hearing (again
  attended by defendant acting as his own counsel and four lawyers), the
  court denied the motion for relief.  The court issued two subsequent orders
  modifying its original ruling.  These orders formed the basis in part of
  the Defender General's appeal.

       Two useful points emerge from the narrative of this torturous
  litigation.  First, the Defender General's appeal is not recognized by any
  defined rule of appellate procedure. The Defender General is not a party to
  the underlying litigation and is not entitled to pursue an appeal under
  V.R.A.P. 5 or 5.1.  Nor does the matter otherwise fit as a collateral final
  order appeal.  In re F.E.F., 156 Vt. 503, 508, 594 A.2d 897, 901 (1991). 
  As the Court indicated in its entry order accepting review, we did so
  notwithstanding these defects under the rules permitting suspension of the
  normal requirements governing original actions for extraordinary

 

  relief.  V.R.A.P. 2, 21; F.E.F., 156 Vt. at 508-09, 594 A.2d  at 901.  We
  ordinarily decline such jurisdiction in all but the most important cases. 
  State v. Saari, 152 Vt. 510, 514-15, 568 A.2d 344, 347 (1989).

       Having now resolved the question of who pays for services to indigent
  pro se defendants, the Court -- it is safe to say -- will not soon revisit
  the question of what services should be provided to particular defendants
  in specific cases.  I doubt the Court intends to create a new category of
  litigation ancillary to every criminal case involving a pro se defendant. 
  Questions or disputes concerning the provision of services to pro se
  defendants should be addressed and resolved, in the first instance, through
  the cooperative efforts of the defendant and a designated public defender
  or assigned counsel (see the discussion below), and subsequently approved
  by the court.  Wool, 162 Vt. at 349, 648 A.2d at ___; 13 V.S.A. § 5231(2). 
  Rarely should these matters require court intervention.  Rarer still should
  institutional disputes among state agencies over the payment of services to
  pro se defendants require judicial resolution.  In this regard, I share the
  Court's hope, if not its optimism, that "all parties have learned from this
  experience." Ante, at 6.

       The second, and more important, point relates to the means of dealing
  with legal services for pro se defendants in the future.  Ostensibly to
  forestall conflicts of this nature, the Court virtually invites trial
  courts to consult the Defender General whenever ordering services for pro
  se  defendants.  Such a practice may alleviate conflict or, more likely,
  may simply enhance the opportunity to litigate every petty issue.  I
  recommend, instead, that when faced with this situation, trial courts
  designate a local public defender or assigned counsel to serve as counsel
  to the defendant particularly for the purpose of providing ancillary
  services.

       Indeed, this case offers a classic and vivid illustration of the
  potential pitfalls of uncontrolled self-representation.  At his arraignment
  in February 1993, defendant was assigned a public defender to represent
  him.  Several months later, defendant expressed dissatisfaction with his
  lawyer and moved to proceed without him.  After carefully reviewing with
  defendant

 

  the rules of evidence and procedure and the status of the case, the court
  accepted defendant's waiver of his right to counsel and allowed him to
  proceed pro se.  Defendant's competency was later questioned and the court
  assigned new counsel to represent him.   In January 1994, the court
  determined defendant to be competent.  His second attorney was then allowed
  to withdraw but agreed to remain as standby counsel.  Defendant then became
  dissatisfied with this attorney, and upon defendant's request, the court
  discharged him.  In late June, the court assigned a third attorney to serve
  as standby counsel.

       Defendant subsequently became dissatisfied with that attorney and
  moved, in September 1994, to have him relieved.  The request was denied. 
  The following month, defendant became upset when counsel attempted to
  supplement defendant's cross-examination of a witness during a suppression
  hearing and, as a result, sued the attorney in superior court for violation
  of his civil rights and infliction of emotional distress.  That attorney
  then moved to be relieved as advisory counsel, citing a conflict of
  interest.  Following a hearing in December 1994, the court denied the
  motion, noting that the complaint was frivolous, that defendant had filed
  similar complaints against other attorneys in unrelated matters, that a
  replacement would be extremely difficult to obtain, and that inordinate
  time (almost two years since the arraignment) had already expired.

       In the meantime, as the court noted, defendant had been busily
  inundating the court with dozens of motions (over sixty by this time),
  including various requests for additional support services.  For assistance
  in evaluating these requests, the trial court contacted the Defender
  General, who subsequently became actively involved in litigating issues
  relating to cost and financial responsibility, in addition to need.  This
  contributed in part to the protracted proceedings.

       Defendant's requests eventually resulted in a court order outlining in
  detail the various material aids that defendant was to be provided,
  including postage, investigative services, telephone access, pens, paper,
  stationery, and the like.  Several months later, the Department

 

  filed a motion for relief asserting that defendant had abused the services
  provided, mailing multiple copies of documents to unrelated parties
  including the Governor and the Chief Justice, and filing eight lawsuits in
  the superior court against the Department for alleged violations of the
  court's order, as well as an action in federal court alleging the
  Department had violated his civil rights.  Defendant responded to the
  motion by claiming that the Department had intentionally frustrated his
  efforts to prepare a defense and requested yet more materials and services,
  including unlimited telephone access, unlimited postage and copying
  service, and more paper (unlined in addition to lined).  Following a
  hearing, the court confined defendant's access to services and materials
  directly necessary to his defense, and allocated certain costs for services
  among the Department and the Defender General.  As noted, the Defender
  General subsequently filed a motion for "protective order" challenging the
  court's allocation of costs, and defendant moved to amend certain portions
  of the original order.  These motions resulted in still further hearings
  and court orders, the last of which ended with the court "urg[ing]
  defendant to consult with advisory counsel in fulfilling these
  requirements."

       The events that transpired here call to mind the image of a loose
  cannon on the deck of a wayward ship in heavy seas.  The myriad motions
  filed by defendant for more and more materials and services, the continual
  bickering among State agencies over costs, and the endless round of court
  hearings portray a defendant out of control, and a system unable to assert
  control. It need not have been this way.

       The Supreme Court has held that the Sixth Amendment guarantees not
  only the right to counsel, but the right to dispense with counsel and
  conduct one's own defense.  Faretta v. California, 422 U.S. 806, 821
  (1975).  This right is not unqualified, however.  Faretta itself recognized
  that pro se defendants may seek to deliberately disrupt their trials or may
  simply require professional assistance.  Id. at 834-35 n.46.  Accordingly,
  the Court held that a State may -- even over objection by the accused --
  appoint a standby counsel to aid the defense or to

 

  represent the defendant should termination of the self-representation
  become necessary.  Id. at 835 n.46.

       The Supreme Court examined the role of standby counsel in more detail
  in McKaskle v. Wiggins, 465 U.S. 168 (1984).  There the Court reiterated
  that Faretta does not absolutely bar the participation of standby counsel
  but requires only that the defendant retain "actual control over the case
  he chooses to present to the jury" and that the jury "perce[ive] . . . the
  defendant is representing himself."  Id. at 178.  "[T]he primary focus must
  be on whether the defendant had a fair chance to present his case in his
  own way."  Id. at 177.

       Thus, Faretta rights are not violated when standby counsel -- even
  over the defendant's objection -- handles "routine procedural or
  evidentiary" matters or seeks to ensure the defendant's "compliance with
  basic rules of courtroom protocol and procedure."  Id. at 183. "In neither
  case is there any significant interference with the defendant's actual
  control over the presentation of his defense."  Id.  This is particularly
  true when counsel's "participation is outside the presence of the jury." 
  Id. at 188.

       Assessed in the light of these standards, I perceive no constitutional
  impediment to the appointment of standby counsel to evaluate a pro se
  defendant's need for ancillary services and attempt to provide them.  Such
  assistance clearly falls in the category of "routine procedural or
  evidentiary" matters.  Id. at 183.  Moreover, counsel's limited
  participation in this area necessarily occurs outside the presence of the
  jury, impinges in no substantial way upon defendants' fundamental right to
  present their own defense in their own way before the jury, and avoids the
  waste of time occasioned by litigating ancillary service issues before the
  court.  The role of standby counsel envisioned here would be to evaluate
  the reasonableness of the need for services and make arrangment for their
  use.  In that respect, their role would be no different than in a case
  where counsel fully represents the defendant.

       While it impinges upon no constitutionally-protected rights, the
  assistance of advisory counsel in this discrete area would measurably
  protect the interests of defendants and maintain

 

  the integrity of the trial process.  In this case, had advisory counsel
  borne the responsibility for providing ancillary litigation services,
  substantial savings in time and resources surely would have been achieved.


                                  _____________________________________________
                                  Associate Justice