Krivak v. Putnam County

Background

Andrew Krivak, Jr. brought a civil-rights action against Putnam County, employees and agents of the Putnam County Sheriff’s Department and Putnam County District Attorney’s Office, and other named defendants. Krivak alleges that misconduct by these defendants resulted in his wrongful conviction. Denise Rose, who testified at Krivak’s trial, is one of the named defendants. Krivak alleges that Rose conspired with County officials to give false and conflicting testimony and intentionally commit perjury at his trial.

Rose’s request

Rose asked the court to appoint a volunteer lawyer to represent her. She stated that she could not answer the complaint because she was not a lawyer and could not afford to hire one. She also asked the court to treat her letter as an answer denying the allegations.

The court explained that civil defendants do not have a constitutional right to appointed counsel, but that federal law, 28 U.S.C. § 1915(e)(1), permits a court to appoint counsel for parties who cannot afford representation. Under the applicable standard, the court first considers whether the party’s position appears likely to have merit. If that threshold is met, the court considers additional factors, including the party’s ability to investigate the facts, whether conflicting evidence will require cross-examination, the party’s ability to present the case, the complexity of the legal issues, and any special reason appointment would promote a fair result. The court also stated that a defendant must show an inability to obtain counsel before appointment will be considered.

Court’s reasoning

The court found that Rose had not demonstrated why she was unable to defend herself. It concluded that Krivak’s allegations concerning Rose’s testimony and alleged participation in the events leading to the conviction were not so complex or unusual that she could not handle them. The court also reasoned that Rose likely had a strong understanding of the relevant facts because they involved testimony she gave and actions she allegedly participated in. The court therefore was not persuaded that appointing counsel for Rose at that stage would be an appropriate use of limited volunteer-lawyer resources.

Ruling

Judge Kenneth M. Karas denied Rose’s request for assignment of counsel without prejudice. The order allows Rose to renew the request and provide additional information if her circumstances materially change. The court also granted Rose an additional 30 days from October 4, 2023, to submit her answer to Krivak’s complaint. The order did not decide the underlying allegations or the merits of Krivak’s civil-rights action.