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DA: Defender appointment premature

November 17, 2010

No one has been charged in Zahra Baker's murder.
And because there are no murder charges, Zahra's caregivers shouldn't be appointed provisional counsel for a capital offense, according to the District Attorney's Office.
District Attorney Jay Gaither said the Capital Defender's Office filed a provisional counsel assignment Nov. 12 with the Catawba County Clerk of Court for representation of Elisa and Adam Baker, Zahra's stepmother and father. According to Gaither, this assignment incorrectly states that both Adam Baker and Elisa Baker are charged with murder.
"The District Attorney’s Office, and each officer of the court, is charged with the responsibility of ensuring that proper administrative procedures are followed," Gaither said Wednesday in an e-mail statement. "While we recognize the right of individuals to legal counsel, we also recognize the obligation of the Capital Defender's Office to follow its own rules and to observe the difference between a legitimate and illegitimate state interest."
The North Carolina Capital Defender's Office appointed Lisa Dubs, a Hickory attorney, on Oct. 18 as provisional counsel for Elisa Baker. According to Dubs' website, her "primary practice is in the area of capital murder cases and serious felonies."
No one is charged in the death of Zahra Baker. Although both Adam and Elisa faced charges during the course of the murder investigation, neither were charged in the child's death.
Elisa Baker is in Catawba County jail and charged with felony obstruction of justice after she allegedly wrote a bogus ransom found the day Zahra was reported missing. Adam Baker was arrested Oct. 24 on charges unrelated to Zahra's disappearance and was later released on bond.
A judge appointed Scott Reilly as Elisa Baker's attorney, and Dubs joined the defense Oct. 18 as provisional counsel. N.C. Indigent Defense Services Director and Capital Defender Robert Hurley appointed Dubs as provisional counsel because of her experience with murder cases, he told The O-N-E shortly after Dubs' appointment.
Rumors about Elisa and Adam Baker's involvement in Zahra's disappearance and murder started circulating almost immediately after the child was reported missing. Police continue to investigate the incident and haven't ruled anyone out as a person of interest.
Hurley did not return a phone call Wednesday from The O-N-E requesting comment, but Hurley previously said Dubs' appointment Oct. 18 to Elisa Baker's case was a precautionary measure.
"It seems pretty clear (in law enforcements') minds that Elisa Baker is one of their primary suspects," Hurley told The O-N-E in October.
But a pre-emptive capital defense doesn't follow North Carolina General Statutes, Gaither said.
Under Rule 2A.2(a), the capital defender can assign provisional legal counsel, "upon learning that a defendant has been charged with a capital offense," Gaither said.
And because neither Elisa Baker nor Adam Baker are charged with murder, Gaither said the Capital Defender's Office isn't following guidelines.
"Furthermore, we disagree with the scope of authority that is set out in the form filed with the clerk and find that it expands the role of 'provisional attorney' far beyond that anticipated by Rule 2A-2(a)," Gaither said.
The rule limits a provisional counsel's role in the defense to "determine whether the defendant is indigent and needs appointed counsel."
Gaither said the Capital Defender's Office, in the form filed with the Clerk of Court, adopts a broader understanding of the provisional counsel's role in an investigation.

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