Phony indigents may be draining defense funds

While dozens of North Carolina lawyers have stalked away in protest from the state’s indigent-defense system in the last two weeks, a few voices are asking whether the protesters are targeting the wrong enemy.

The lawyers who have left are upset that state lawmakers, facing an unrelenting budget squeeze, are considering cutting the appointed-lawyer fee, which stands at $75 an hour.

But saving money on the fees won’t solve the indigent-defense problem, James McGee, an attorney in Wilmington, said.

Most defendants he sees applying for indigent defense, McGee told Lawyers Weekly, aren’t indigent.

“Indigent means you have no other means of retaining a lawyer,” McGee said. “It means destitute.”

If the state cracked down on the numbers of defendants being granted indigent defense, McGee said, then proposed cuts to attorneys’ hourly rate might not be necessary.

Charlotte criminal defense attorney Tim Emry sees abuses of the system, but he disagrees with McGee about the prevalence of it. He said he thinks the overwhelming majority of criminal defendants with appointed counsel are indigent.

Still, Emry said, the temptation to seek free legal counsel is hard to resist.

“If I was charged with felony breaking and entering,” Emry said, “and an attorney asked me to plop down $5,000 to get started, I might be filling out the affidavit” requesting an appointed lawyer.

Emry practices in Mecklenburg County, which spends a large chunk of the state’s indigent-defense money. In the fiscal year from July 1, 2009 through June 30, 2010, Mecklenburg County spent more on indigent defense than any other North Carolina County.

Mecklenburg County District Court Judge Sean P. Smith said it’s clear that defendants have a right to counsel, and few defendants welcome the costs of legal representation.

What the judges struggle with, Smith said, is whether the defendant and his affidavit evince true indigence, or merely a desire to avoid the expense of hiring a lawyer.

McGee said the affidavit defendants fill out requesting court-appointed counsel doesn’t go far enough.

“We should be asking these defendants whether they have a cell phone, whether they have the Internet, whether they have cable or Netflix,” McGee said. “If they have assets they can use to pay counsel, they shouldn’t get court-appointed lawyers.”

McGee said many defendants think they are entitled to get a free attorney from the state. That’s because, he said, in some counties judges hand out appointments like Halloween candy.

Emry said that in Mecklenburg County, policies vary from judge to judge.

And he doesn’t fault judges for erring on the side of appointing counsel. “We process hundreds of defendants at a time in Mecklenburg County. I get the sense that when judges see a person who has a low bond, but who has been in jail for 24 hours and not bonded out, they assume that the person doesn’t have a lot of money.”

McGee said he’s seen the inverse of that scenario.

“Yesterday I was in court and I saw a guy who’d been arrested for breaking and entering,” McGee said last week. “He was given court-appointed counsel, but he made his $10,000 cash bond. I see that all the time.”

Conference of District Attorneys Director Peg Dorer said she’s been hearing the complaint McGee voiced since before Indigent Defense Services was created in 2001.

“One of the reasons IDS was created was to better manage funds and to set up a threshold for determining who is indigent,” she said.

Danielle Carman, assistant director and general counsel for IDS, said the average growth in total per-case expenditures over the five-year period before IDS created was 3.4 percent. Since IDS’s creation, average per-case spending has grown just 0.3 percent, she said.

And, she added, while the courts’ caseload has been flat over the past decade, IDS’s caseload has risen because more defendants are being found indigent.

Carman said IDS has worked to establish better ways to guide judges in making indigence determinations, but conceded that it was difficult to come up with standards that accommodate the multitude of circumstances in which defendants find themselves as well as meaningful standards to guide judges’ in making their determinations.