RES 168 Draft 01 2010-2012 - Laserfiche WebLink

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WHEREAS, many other states thoroughly examine the criminal defendant's finances and assets. Their assessment include questions regarding other persons living in the household (including children, dependants and contributing members of the household), as well as provide space for listing more than one job. Additionally, many states request substantially more data regarding the criminal defendant's assets, including: income provided to criminal defendant by individuals other than himself and his spouse, retirement benefits, any alimony /child support received, sporting equipment (such as boats and motorcycles), money owed to the criminal defendant, personal property of worth (such as appliances), "other valuable property" (such as gold, precious stones, jewelry, works of art, farm equipment, etc.), and the amount of cash a criminal defendant has on hand. It is only with a comprehensive inventory that the State will be able to make an accurate determination as to whether the criminal defendant warrants government- funded public defense for criminal actions; and WHEREAS, the Office of the Public Defender uses a standardized form to gather financial information on criminal defendants; however, they are not required by law to verify the information listed. The Office of the Public Defender is merely required to conduct "an appropriate inquiry into the financial circumstances of the person seeking legal representation ", and obtain "an affidavit or a certificate signed by such person demonstrating the person's financial inability to obtain legal counsel." Although criminal defendants must sign a sworn affidavit which, if inaccurate could result in prosecution, studies show that this process rarely deters untruthful parties. Furthermore, the Office of the Public Defender neither reports, nor furnishes the criminal defendant's request forms, to the Office of the Prosecutor when they find that the information provided is fraudulent; and WHEREAS, Office of the Public Defender's non - objective determinations are neither fair nor adequate because bias is present. As a result of this non - objective screening, it is certain that on occasion criminal defendants, who are in fact quite wealthy, and perfectly able to afford representation, are deemed to be indigent. Some designations of indigence may streamline the determination process by eliminating the need to gather and verify additional and substantial financial data; and WHEREAS, it is reasonable to require pay stubs and tax returns to accurately establish income. Similarly, employer verification, information from landlords /property managers can be useful in showing assets. It is not unusual to compel permission to run credit reports and retrieving banking information, before determining parties to be indigent. If a criminal defendant is already receiving public assistance, a number of jurisdictions automatically deem him indigent. By not verifying criminal defendants' financial information, the State runs a risk of providing public attorneys to individuals who can actually afford private counsel. This in turn, wastes scarce resources and runs the risk of providing sub - standard services to all people, which is poor public policy and constitutionally unsound; and WHEREAS, there are a number of difficulties when it comes to deciding which entity /entities should ultimately verify criminal defendants' applications for court- appointed counsel. While government entities certainly have more specialized knowledge, a conflict of interest is almost unavoidable. If prosecutors screen the cases, they can threaten to deny a criminal defendant counsel, unless he pleads guilty. If the public defenders office verifies the 2