By Sabra Barnett and Isabel Ranney

You just have to watch a few Law and Order: SVU episodes to know the that when someone is arrested, they are read Miranda warnings.  While the 100 words in Miranda are all valuable, “the right to an attorney” and that, “if you cannot afford one, one will be provided to you” is of particular importance. This means that if someone is found to be indigent – the government must provide them with a lawyer.  Lawyers working from public defender organizations are often at the top of their field and specially trained for the type of case to which they are appointed. However, for a variety of reasons, courts often have to entertain requests from indigent clients asking for a different attorney than the one appointed by the court because that defendant does not “like” or “get along” with their appointed attorney.  The law is clear that you have the “right” to counsel, but not the right to counsel of your liking. Because it is difficult for the courts to handle the volume of requests, courts often deny a defendant’s motion for a new attorney to be appointed.

A defendant may feel “stuck” with their appointed counsel, as hiring private counsel can be expensive and even cost prohibitive.  But there is an option in Arizona that is commonly referred to as “Knapp” counsel.  This is the opportunity to engage a private lawyer to assist the appointed attorney with certain aspects of the case.

What is Knapp counsel?

Once a defendant is found to be indigent in a criminal matter, the state appoints them an attorney. This is the attorney they are entitled to as a matter of law.  Gideon v. Wainwright, 372 U.S. 335 (1963). Separately, the defendant’s family can consider hiring Knapp counsel – a private attorney who works alongside the appointed counsel often in more of an advisory capacity. This attorney does not disrupt the defendant’s status as “indigent”.

Where did Knapp counsel originate?

In 1973, John Henry Knapp was charged with two charges of arson-murder of his two daughters, aged 2 and 3, who burned to death in the family home in Mesa, Arizona. At the arraignment, Knapp was deemed indigent and was appointed counsel. A month later, Knapp’s mother hired a private attorney to assist the public defender. The county attorney argued that Knapp was entitled to either a public defender or private counsel, but not both.

The Arizona Supreme Court disagreed. In Knapp v. Hardy (1974), the Arizona Supreme Court held that “a Defendant has the right to have a Private Attorney associate with the Public Defender’s Office in defense of their case.” Knapp v. Hardy, 111 Ariz. 107 (Ariz. 1974). This means a defendant may remain indigent and retain their appointed counsel, who collaborate with a private counsel funded by someone other than the defendant.

What is the benefit of Knapp counsel?

Families of the accused often appreciate Knapp counsel, as there is more than one attorney with whom they can communicate. This is especially true when a defendant is in jail before the trial (e.g., held on a Dangerous Crime Against Children, which is presumptively nonbondable). Knapp counsel can provide timely updates about the case and strategy as long as these communications have been authorized by the client.

While communication is important, there is another benefit of Knapp counsel that may be even more valuable. Often, Knapp counsel will have a subject matter expertise (e.g., child abuse, shaken baby, or even DNA) with a vast database and working relationship with experts. Knapp counsel can coordinate hiring the experts and ensuring that they are the right fit for the defendant and the family. Moreover, the coordination with the appointed attorney means the expert fees may be funded through indigent services (in Maricopa County, this could be the Public Defender’s Office, Legal Defender’s Office, Office of the Legal Advocate, or Office of Public Defense Services). Meaning, if Knapp counsel helps the appointed counsel find an expert on a specific issue needed for the defense, the appointed attorney can seek payment for the services through the County.

Resources for public defenders are lacking. If the appointed attorney is willing to allow Knapp counsel to fully participate, Knapp counsel can conduct interviews with witnesses, track down evidence, and can work with the public defender to provide the resources needed for the best defense.

There is also the adage that two heads are better than one. Having two attorneys on the case ensures that there are different perspectives assessing the case and working toward the same goal. By having outside counsel, the defendant has the benefit of a “defense team” that will allow different perspectives and strategies to be considered for the defense and may provide a specific expertise not available through the resources provided by the State.

How do defendants learn about Knapp? 

The option of Knapp counsel is not explicit in Miranda warnings but may be something encouraged by the appointed attorney should they want the client and/or family to consider bringing on private counsel.  Knapp counsel is not about stepping on toes or usurping control of a defense, it is available when the client, family, or appointed attorney believe it is in the best interest of the defendant. Good Knapp counsel is helpful and often welcomed by the appointed lawyer.

Sabra Barnett is a second-generation attorney with extensive criminal defense experience at the state and Federal levels. She is licensed to practice in Arizona and Alabama.

Isabel Ranney is a third-year law student at the Sandra Day O’Connor College of Law at Arizona State University, Associate Editor for the Law Journal for Social Justice, and clerk at Woodnick Law.