Mass. High Court Tightens Rules On Indigent Defendants

Criminal defendants in Massachusetts must prove that they can't afford their own attorney before a judge can appoint a lawyer to represent them at taxpayer expense, the state's highest court ruled Friday.

In a series of rulings, the Supreme Judicial Court tightened rules governing when defendants can get court-appointed lawyers.

The court found that the ultimate burden is on defendants, not on probation officials, to prove they can't afford to pay for a lawyer.

The SJC also found that retirement account funds can be considered when calculating whether a defendant is indigent, ruling in the case of a Winchester man accused of killing his wife, two young children and mother-in-law in 2010. The court rejected Thomas Mortimer IV's claim that his retirement account cannot be used to help pay for his defense.

Mortimer's lawyer had argued that the money in his IRA account cannot be considered liquid assets and should not be counted when determining his indigency or ability to contribute to the cost of his defense.

The SJC, however, said the money could be used, excluding any early withdrawal penalties and taxes.

"Defendants with substantial savings in IRAs, accessible after forfeiting an early withdrawal penalty, can reasonably be considered to have funds available for their defense and should be made to exhaust those accounts before the Commonwealth expends its limited resources on their representation," Justice Robert Cordy wrote for the court in the unanimous ruling.

The court rejected a claim by a woman who argued that it's up to the probation department to prove she's not indigent.

Diane Porter, the president and treasurer of Excel Home Care Inc. in Tewksbury, was indicted in 2010 on charges of failing to pay her employees. After her arraignment, she filed an affidavit of indigency.

Probation officials interviewed Porter to verify her claim but found that she was not indigent because she and her husband had a combined annual income of about $60,000 and owned three properties.

The SJC ruled for the first time on the issue.

"The defendant argues ... that the ultimate burden of proof is on the probation department to prove her nonindigency beyond a reasonable doubt. ... We reject this argument and hold that a defendant seeking appointment of counsel at public expense bears the burden of proving indigency by a preponderance of the evidence," Justice Francis X. Spina wrote for the court in the unanimous ruling.

In a third case, the high court agreed with a lower court judge who found that a man charged with cocaine trafficking was not indigent because he had available funds through his girlfriend and mother.

Joseph Fico argued that the judge's consideration of those funds infringed on or violated his right to counsel under the Sixth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights.

The SJC rejected those arguments, finding that the disposable net monthly income of the person's spouse or significant other and the person's parents can be considered if they live at the same residence and contribute substantially toward household expenses.