Presumption of Indigence: The Opt-Out Solution

In light of recent Massachusetts case law regarding indigence of criminal defendants, it might be time to change the rules: all criminal defendants should have counsel appointed, be assessed as to ability to contribute, and be provided with the option to waive appointed counsel and hire a private attorney.  As a practical matter, the opt-out process would modify little and cost the state nothing; indeed the Commonwealth might benefit from the change.  If the government guarantees and provides appointed counsel for each criminal defendant while also ensuring that those who can contribute do pay, the system will be far more honest and far more fair. 

Briefly, the Supreme Judicial Court reviewed circumstances in three cases as to which assets may be considered when defendants request appointed counsel.  In Commonwealth v. Porter, 2012 WL 2849456 (July 13, 2012), the defendant was deemed not indigent; if she could not find an attorney to accept the case for the fee the court determined was fair, the defendant could return to court to be deemed indigent but able to contribute.  In Commonwealth v. Mortimer, 2012 WL 2849450 (July 13, 2012), the defendant undeniably had assets, including a retirement account which would be attributable for defense costs minus fees and penalties for early withdrawal; however he had no access to many of the other assets due to prohibitions outlined in the Massachusetts  "slayer statute".  In Commonwealth v. Fico, 2012 WL 2849443 (July 13, 2012), the court affirmed that assets of family members including a girlfriend or parent may be reachable for criminal defense. 

The rules establish a cumbersome, expensive and ludicrous opt-in framework that ends up costing time and money for the already overburdened courts to figure out eligibility and price for a constitutionally guaranteed mandate.  It makes sense to switch the paradigm.

The Framers of the Constitution declared that criminal defendants shall enjoy the right to counsel (whether they like it or not).   The Supreme Court famously determined that this obliges the public to pay for the cost of counsel for anyone who cannot afford a lawyer.  The requirement is that counsel also be paid a reasonable fee for services rendered and that criminal defense attorneys be constitutionally effective in representing clients.  Today’s criminal defense environment encompasses the natural evolution of law, consequences of criminal convictions, the amalgamation of law and science, forensics and social science disciplines.  Criminal defense attorneys must have a wealth of knowledge and access to numerous experts in order to meet the minimum requirements of constitutional effectiveness. 

Although we rarely discuss it, the Massachusetts Constitution does not oblige criminal defendants to enjoy the right to counsel; it provides the opportunity to elect whether or not to obtain counsel. See, MA Const. Pt. 1 Art. 12 Because Massachusetts courts presume the election of counsel, the Commonwealth has already established the framework of an opt-out system. 

To the extent that opting out would affect the recent changes in the Massachusetts public counsel and private counsel divisions of the Committee for Public Counsel Services, it would illustrate the folly of seeking to place more cases into salaried public defender caseloads (which, after a tipping point already present, renders them ineffective as a matter of law opening up new litigation).  Salaried public defenders would only be able to accept cases of the truly indigent wholly unable to contribute to their own defense.  The private bar who accepts court appointed cases, however, would be eligible for the undeniably indigent matters as well as those able to contribute.  Because every defendant will be assigned counsel and assessed for ability to pay, the pool of those indigent but able to contribute may increase thereby necessitating more, not fewer, attorneys able to accept court appointed cases.

The opt-out framework would avoid the confusion, delays and litigation associated with whether or not an individual qualifies for counsel and it would cost less than the system in place.  Rather than requiring criminal defendants to bear the burden of demonstrating indigence by a preponderance of the evidence before having counsel appointed at the public’s expense, all defendants would obtain counsel subject to reimbursement costs where appropriate.

One recent case demonstrates the efficacy of immediately appointed counsel.  As the speedy trial clock ticked away, the court determined that the defendant was not indigent and could afford to pay counsel a fee determined by the court if the defendant could find a lawyer to accept the case for that amount.  The amount was roughly the same as the fee court appointed counsel would make if the case were assigned and went to trial.  If appointed, additional funds would be available for investigators and experts.  

Lawyers have a duty to make their client’s interests paramount.  In this circumstance, the client would be disadvantaged by hiring private counsel as there would be less money available for the required experts.  Therefore, an ethical lawyer would tell the court that s/he could accept the case but only if the client were deemed indigent but able to contribute – not for the lawyer’s fee - but for the ability to represent the client in today’s reality.  Whether the matter is a street crime requiring experts on ballistics or DNA or drug composition or a financial crime where the assistance of forensic accountants and financial expertise is beyond the realm of ordinary knowledge for an attorney, the lawyer would be constitutionally ineffective to accept the matter on a low fee without the ability to hire experts.

Therefore, the defendant would end up being deemed indigent but able to contribute in any event.  However, if the opt-out system existed, the defendant and her attorney would be working together on her case and the time spent on these hearings regarding whether or not counsel should be appointed would have been spent providing access to justice for another litigant.  The opt-out framework would save time and money for the overburdened courts with the net same result, a contribution by the defendant able to so provide.

Just like the system today, the vast majority of defendants would be deemed unable to contribute.  Just like today, a small number would opt out by refusing to submit financial information or by hiring private counsel who would file a notice of appearance at the earliest moment (the only difference would be an affidavit of the defendant affirmatively waiving court-appointed counsel.)  Just as today, some defendants would have an ability to contribute which would be assessed with a revisable payment plan subject to review.  What would be eliminated is the question of whether or not the individual qualifies for counsel.   

Perhaps criminal process should begin with a presumption of indigence with required financial disclosure by which defendants demonstrate their ability to contribute by a preponderance the evidence.  Any defendant who chooses to can opt out and hire private counsel.  The only thing that changes in the opt-out model is that criminal defendants will obtain counsel early on in their defense whether or not they can afford the full cost of hiring a lawyer.