No confidentiality in PD applications

Public defenders, pursuant to Gideon v. Wainwright, are provided to all indigent people accused of crimes. Seems simple enough in theory, but in practice, there has developed over the years a battle over what “indigent” means exactly. Some states, like CT, use the Federal poverty guidelines and set eligibility at 125% of that. Other states do… I don’t know what.

But the problem arises when people are borderline indigent or just above the line or far above the line. Remember, though, that the line is drawn very low: in CT, if you’re charged with a felony, you can’t be making more than $22,340 per annum. That’s the cost of sponsoring a starving child in Africa.

Some jurisdictions adhere to this strictly: if you make $22,345 you’re not eligible. Tough luck, Go find a bottom-feeding “defense” “attorney” or represent yourself. Some jurisdictions correctly recognize that if you’re charged with a serious felony, even if you make $70,000 a year you can’t afford to hire an attorney to properly represent you. That’s why they’re called guidelines. I’ve written about thisover and over again – and also about the conflict this causes between the private bar and the public defender’s offices. Are we taking food off their tables? I doubt it, but the point of contention still remains.

What I’ve never discussed, however, is what happens if an indigent person “lies” on their application of financial indigency. The indigency statute, 51-297(b) provides that:

(b) Any person who intentionally falsifies a written statement in order to obtain appointment of a public defender, assistant public defender or deputy assistant public defender shall be guilty of a class A misdemeanor.

I’m pretty certain that this has almost never happened, but it seems as though the indigency application is not confidential and open to investigation by the prosecution but I’m pretty certain it hasn’t been judicially tested. Which brings me to New Jersey.

Just a few days ago, the NJ Supreme Court held [PDF] in an opinion that the indigency application and the financial affidavit can, “in some circumstances” be open to the state to investigate “fraud”. This arose in the case of some mobster who:

Deputy Attorney General Mark Eliades had submitted affidavits listing Cataldo’s assets when he was charged in 2010, including a $659,600 house in Florham Park co-owned with his wife, Lorraine, for which he was paying off a $160,000 mortgage and a $100,000 home equity line; a $750,000 mortgage on a property in Readington and another home in Florham Park owned by his wife that was assessed at $484,300, the court said.

The prosecution also presented a car lease agreement in which Cataldo said he worked as a contractor for Cataldo Construction and his monthly income was $10,500, the court wrote.

Cataldo obviously applied for and was granted the services of the public defender. The Court reasoned that in order to investigate fraud of public services, the prosecution should have access to the financial affidavit form that is prepared by and kept by the public defender in the file of each client.

This, of course, would breach confidentiality. So how do we get away with what? Per the NJ Supreme Court, now the form has to include a statement that the information is not confidential and may be disclosed in “appropriate circumstances”. Voila! Magic wand waved; problem solved!

Except obviously not. The trend seems to be that if money is tight, the solution isn’t to reduce the number of prosecutions or provide more funding, but rather to cut funding to indigent services. While Cataldo may or may have tried to con the system into granting him the services of the public defender – and believe me, if I were ever arrested in CT, I’d give away all my assets too so I was indigent – the ruling has the potential to further damage the relationship between public pretenders and their clients.

I’m not sure what the NJ Statute says (I’m too lazy to go look it up), but I’m not sure if this would work in CT. The statute in CT makes no reference to what the income eligibility is. It simply states that someone is indigent if:

(f) As used in this chapter, “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation

That could – and should – mean different things in the contexts of different cases. Our job, as public defenders, should never to be to determine who is worthy of representation and who isn’t. The statute leaves it to us to determine who is indigent and we should have the freedom to do so.

To open up that process to the overzealous, prying eyes of the prosecutors could have disastrous consequences. As AmbImb at PD Stuff says:

In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.

What a ruling like this does it that it gives prosecutors yet another tool to go after clients and this makes us complicit in that process.


9 thoughts on “No confidentiality in PD applications

  1. PD Girl


    We have a few ways to qualify. 125% of the poverty guidelines; being on a means-tested benefit automatically gets you a PD (food stamps, medical assistance, etc); or if 3 local private attys have refused your case bc you can’t afford to pay them. For people on the edge, the statute allows the court to order partial reimbursement to the state for the cost of a PD (don’t even get me started on that….) so those people usually have to pay anywhere from $100-$700, depending on their income/assets. The courts determine who gets a PD. If there is a question about someone’s eligibility, then the Chief PD of the district asks the court to review the application. I have NEVER seen a prosecutor do that. Bc the application is confidential!! As it should be.

  2. shg

    You know, your final example from the PD Stuff post doesn’t really make my eyes tear up. As much as I share your concern for the indigent, I’m less concerned for those who can afford counsel but would rather not spend their money on such nonproductive things.

    From the PD perspective, it’s may be that no one should have to spend money to defend themselves from criminal charges, though that means that society covers the cost of their defense while they get to enjoy their home, car, tools, iPad, bank account, TV, laptop, etc., unmolested from the nasty private lawyers.

    From the private “defense” “lawyer” perspective, on the other hand, the ability to afford a lawyer means a reallocation of resources, since few people keep a “criminal lawyer fund” account in the bank or have the ability to pay for such an unforeseen expense from their vast excess savings. Thus, the question isn’t whether they can afford a lawyer, but whether they can afford a lawyer without having any impact on their lives otherwise.

    It’s not that I’m unsympathetic, but that somebody has to pay, whether it’s taxpayers or the defendant. We provide counsel to the indigent not because of a financial choice, but because the Constitution demands a defense even when they can’t afford one.

    1. Gideon Post author

      We’ve been down this road before.

      I’m not trying to take food off your table and sure, there has to be some enforcement of who gets free legal services and who doesn’t. My point has always been that the standards are: 1) too low, and; 2) arbitrary.

      What happens when a defendant “runs out of money” for his private lawyer or experts? What happens when he suddenly finds some and wants to fire his PD? It’s a fluid game and rigid rules don’t benefit the defendant.

      The danger is that there will be those that are barely indigent but not quite and will fall into the abyss of bottom-feeders who do nothing more than take the $1500 they’ve scrounged up and feed them to the wolves.

      But this has no bearing on whether we should acquiesce in giving prosecutors yet another tool to prosecute our clients with.

  3. nidefatt

    In Idaho the application was previously in no way confidential, prosecutors used it all the time to impeach or even as substantive evidence of identity. In July this year a new law will kick in that prevents them from using it to do anything except impeach.

  4. Nick

    In this county, if charged with a felony and in custody, you’re pretty much given a PD by default. However, if it is later found you can pay, you’re paying for our services. I think this makes sense because it prevents you from being denied counsel by being poor, but provides a way to make those who could afford an attorney pay.
    My office recently represented a guy who turned himself in by flying here on his private jet (he eventually decided he wanted a “REAL LAWYER” I guess).

  5. Daniel

    Did you mean to say “public pretender?” Freudian slip? LOL.

    One judge in my California county has it “covered.” He says to the defendant, “go to the public defender’s office and pay $25 (upfront) to apply for the public defender.” That is the law, however, the judge doesn’t make it clear that the public defender must waive the fee if the defendant can’t pay the $25. Thus, it appears the defendant can’t even apply if the defendant doesn’t have $25, discouraging him or her from even applying.

    1. Gideon Post author

      Nope, that was intentional!

      That’s kinda shady for the judge to do. Do the PDs say that he doesn’t have to pay if he can’t?

    2. Nick

      I think I know what county you work for (God I hope it hasn’t spread).
      @Gid, yes, we did, at least when I worked there.

  6. Pingback: A cop in sheep’s clothing | a public defender

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