Tuesday July 17, 2012

The decision of the state Supreme Judicial Court on Friday that criminal defendants must prove they can't afford their own attorney before a judge can appoint a lawyer to represent them at taxpayer expense takes a load of responsibility off a Probation Department that is ill-equipped to handle it. It also makes simple sense that those who want taxpayers to pay for their defense attorneys should have to demonstrate that they deserve this benefit.

In a series of rulings, the court said a range of people, including a defendant's spouse or parents, can be required to contribute to the legal defense before taxpayers are required, and retirement account funds can be included when determining whether or not a person before the court is indigent. In the latter case, it is remarkable that IRAs were not considered in such instances before the ruling.

An audit by the office of state auditor Suzanne Bump shows millions of dollars have been spent over the years on taxpayer-funded lawyers without the Probation Department actually determining whether the defendants were indigent and deserving of those services. Public defenders may assert that their clients are deserving, but in truth, most have not been required to verify this by the appropriate agency.

A defendant in one of the related court cases before the SJC claimed that it was up to the Probation Department to prove that she was not indigent.


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In fairness to the Probation Department, which has had a difficult time with its patronage scandal, it can be difficult and time-consuming to prove a negative if a defendant is educated in ways of hiding funds. In the ruling authored by Justice Francis X. Spina, the SJC said that "a defendant seeking appointment of counsel at public expense bears the burden of proving indigency by a preponderance of the evidence."

That is where the burden of proof should lie. This ruling by the Supreme Judicial Court should save taxpayers money, which will eventually provide some indication of how much taxpayer money was wasted on lawyers for clients who were not indigent over the years.