Massachusetts Supreme Judicial Court Tells Indigent Defendants: Prove It

In a stunning reversal of the way that things have been done in our legal system in the past, the Massachusetts Supreme Judicial Court now has two words for defendants who “claim” to be indigent, and need a free, court-appointed lawyer: “Prove it.”

That’s right. You see, prior to this landmark decision this past week, almost anyone could claim to be indigent (poor,) and get a court-appointed public defender, simply based on that person’s claim of “indigency.” The Massachusetts Probation Department is principally responsible for “vetting” (determining) if a defendant really qualifies for public counsel, and little in the way of serious documentation is needed to prove this claim.

This method has been rife with problems. As a Dedham and Boston criminal defense attorney, I see it all the time in the courtroom. Many criminal defendants, who don’t want to pay on their own for an attorney, simply make a claim of indigency, and faster than you can say “lawyer,” that defendant is almost always appointed a public defender (known in the court system as a “bar advocate.”) Defendants claiming indigency typically only have to fill out a form claiming his or her unimpressive financial status, and that defendant is almost routinely appointed a free lawyer to represent him or her. In my view as a Norfolk County criminal lawyer, that takes public defense funds away from the truly poor people who do need it, and that’s just not right.

In my career as a Massachusetts criminal defense lawyer, I’ve seen people charged with everything from Massachusetts shoplifting to Boston drunk driving to Roxbury possession of drugs with intent to distribute — who actually have been appointed a bar advocate because they claimed they were “indigent,” but who later call me, wanting to retain me as a private attorney if they don’t like their public defender. In other words, these defendants actually do have the money to hire a private attorney, but simply decided to claim indigency in order to get a free attorney and save their money.

Some people might be surprised by a criminal defense lawyer expressing this attitude. Don’t be. As a dedicated criminal defense attorney, I believe very strongly that all truly indigent defendants must be afforded a public defender – no matter the crime. That constitutional right has been embraced by the United States Supreme Court for decades. But a funny thing happened on the way to justice: This noble guarantee became distorted and abused, thwarting its noble origins and intent. And – at least in Massachusetts – that needs to be corrected. The system that has been used here for years has been filled with abuses. In fact, a study completed by the Massachusetts state auditor recently concluded that “often very little effort (is) made to verify a defendant’s financial claims.”

It is about time that criminal defendants who claim indigency and request public counsel prove that they cannot afford to pay for their own lawyer, before any judge appoints a taxpayer-funded attorney to represent them. Now, for the first time ever in Massachusetts, the SJC has said that the burden of proving indigency is on the defendant. Remarkably, the court has also said that judges can take into account the finances of a defendant’s spouse, girlfriend and parents. I think this is only fair. On that point, I was disgusted to see Whitey Bulger appointed a public defender, depsite having two brothers, both attorneys, one of whom – former Senate President and former UMass President William M. Bulger – is inarguably a millionaire.

I know that many people will disagree with the court’s ruling on this issue. People already have. Anthony Benedetti, the chief counsel for the Committee on Public Counsel Service (CPCS), has said that he is concerned that this crackdown will affect the wrong people – those clients who actually have little or no money, or who are mentally or mentally challenged. I feel these fears are over-exaggerated. CPCS is a much-needed organization, and they deserve far more money than the Massachusetts Legislature has given them, to do their noble job well – specifically to pay bar advocates more than they are presently paid for the extremely difficult work they do. But at present, I disagree with their opposition to this ruling
I still believe, as a Norfolk County criminal defense lawyer, that there was too much corruption in the old way of doing things. And let’s face it, bar advocates are paid for with your tax dollars. How would you feel about needlessly subsidizing a defendant charged with crime, simply because he wanted to keep his money in the bank?