InterLinc: Public Defender: 2000 Annual Report #11

Constitutional & Statutory Background For Office of the Public Defender

In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.

Sixth Amendment
Constitution of the United States

In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel. . .

Article 1, Section 11
Constitution of the State of Nebraska

Neb. Rev. Stat. 23-3401 (Reissue 1997)

Public Defender in certain counties; election; There is hereby created in counties that now have or that shall hereafter attain a population in excess of one hundred thousand inhabitants, and in other counties upon approval by the county board, the Office of Public Defender, who, in counties having a population in excess of one hundred thousand inhabitants which have not elected a Public Defender prior to July 10, 1984, shall be elected at the next general election following July 10, 1984, or the year in which the county attain a population of one hundred thousand inhabitants, and who, in other counties, shall be elected a t the first general election of county officers following approval by the county board and every four year thereafter.

The Public Defender shall be a lawyer licensed to practice law in this state. He or she shall take office after election and qualification at the same time that other county officers take office, except that upon the creation of such office in any county, a qualified person may be appointed by the county board to serve as Public Defender until such office can be filled by an election in accordance with the provision s of this section.

In counties having a population of more than one hundred seventy thousand inhabitants, the Public Defender shall devote his or her full time to the legal work of the Office of the Public Defender and shall not engage in the private practice of law. All assistant Public Defenders in such counties shall devote their full time to the legal work of such Office of the Public Defender an shall not engage in the private practice of law so long as each assistant Public Defender shall receive the same annual salary as each deputy county attorney of comparable ability and experience shall receive in such counties.

No Public Defender or assistant Public Defender shall solicit or accept any fee for representing a criminal defendant in a prosecution in which the Public Defender or assistant is already acting as the defendant's court-appointed counsel.

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A Public Defender elected after November 1986 need not be a resident of the county when he or she files for election as Public Defender, but a Public Defender shall reside in the county in which he or she holds office except that in counties with a population of one hundred thousand or less inhabitants, the Public Defender shall not be required to reside in the county in which he or she holds office.

Neb. Rev. Stat. §23-3402 (Reissue 1997) Public Defender duties; appointment; prohibitions.

It shall be the duty of the Public Defender to represent all indigent felony defendants within the county he or she serves. The Public Defender shall represent indigent felony defendants at all critical stages of felony proceedings against them through the stage of sentencing. Sentencing shall include hearings on charges of violation of felony probation. Following the sentencing of any indigent defendant represented by him or her, the Public Defender may take any direct, collateral, or post conviction appeals to state or federal courts which he or she considers to be meritorious and in the interest of justice and shall file a notice of appeal and proceed with one direct appeal to the Court of Appeals or the Supreme Court of Nebraska upon a timely request after sentencing from any such convicted felony defendant subject to the Public Defender's right to apply to the court to withdraw from representation in any appeal which he or she deems to be wholly frivolous.

It shall also be the duty of the Public Defender to represent all indigent persons against whom a petition has been filed with a mental health board as provided in Sections 83-1049 to 83-1051.
It shall be the duty of the Public Defender to represent all indigent persons charged with misdemeanor offenses punishable by imprisonment, when appointed by the court.
Appointment of a Public Defender shall be by the court in accordance with sections 29-3902 and 29-3903. A Public Defender shall not represent an indigent person prior to appointment by the court, except that a Public Defender may represent a person under arrest for investigation or on suspicion. A Public Defender shall not inquire into a defendant's financial condition for purposes of indigency determination except to make an initial determination of indigency of a person under arrest for investigation or on suspicion. A Public Defender shall not make a determination of a defendant's indigency, except an initial determination of indigency of a person under arrest for investigation or on suspicion, not recommend to a court that a defendant be determined or not determined an indigent.

Neb. Rev. Stat. §23-3403 (Reissue 1997)
Public Defender; assistants, personnel; compensation; office space, fixtures and supplies; county furnish.
The Public Defender may appoint as many assistant Public Defenders, who shall be attorney licensed to practice law in this state, secretaries, law clerks, investigators, and other employees as are reasonably necessary to permit him or her to effectively and competently represent the clients of his office, subject to the approval and consent of the county board, which shall fix the compensation of all such persons, as well as the budget for office space, furniture, furnishings, fixtures, supplies, law books, court costs, brief-printing, investigative, expert, travel and other miscellaneous expenses reasonably necessary to enable the Public Defender to effectively and competently represent the clients of his office.

Neb. Rev. Stat. §29-3901(3) (Reissue 1995)
Indigent shall mean the inability to retain legal counsel without prejudicing one's financial ability to provide economic necessities for one's self or one's family. Before a felony defendant's initial court appearance, the determination of his or her indigency shall be made by the Public Defender but thereafter it shall be made by the court.

Contents

Appendix B