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A gavel rests on a judge's desk.(Photo: The Indianapolis Star)
SIOUX FALLS, S.D. — Judge John Hinrichs knows at least some of the people who request and receive an appointed lawyer in Minnehaha County could have afforded to hire their own.
The former public defender recalls working on some cases for months, only to have the clients hire someone else with money they once said they didn't have.
But nobody knows how many people who apply for court-appointed counsel can afford to hire their own lawyers. Applicants aren't required to document their income or assets, and their statements aren't checked for accuracy. In South Dakota, there are no definitive guidelines for income requirements.
Yet the costs for those lawyers can be high, both in pure dollars and in extreme caseloads for public defenders and advocate's offices, who carry as many as 173 cases at a time for clients deemed indigent.
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Between the public defender, the public advocate and the costs of assigning private lawyers in conflict cases, Minnehaha County will pay more than $3.8 million for indigent defense this year. The county attempts to recoup attorney fees in all cases — even those that are dismissed — but the payments don't come close to covering the cost.
So far this year, defendants have reimbursed the county $824,197.
Those issues have prompted some officials to propose asking the courts to set eligibility guidelines for out-of-custody defendants charged with misdemeanors and require applicants to document their income. The proposal also would provide a position to verify those applications.
Minnehaha County Public Defender Traci Smith says the goal is to make sure the people who most need representation are getting it. The system now is too wide open, Smith says. "It can take away from our ability to help the clients who truly need it."
Public Advocate Cindy Howard doubts that misuse of the system is widespread. But the issue has prompted other states to look into their own regulations. In Minnesota and Nebraska, tracking projects over the past decade failed to ferret out fraud or misuse on a level that justified continuing review.
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The right to a lawyer is well established, protected by the Sixth and 14th Amendments in the U.S. Constitution. The U.S. Supreme Court affirmed that right in the case of Gideon vs. Wainwright in 1963.
The exact outlines of eligibility for court-appointed counsel vary widely.
In South Dakota, the eligibility law is fairly broad. It says that if a defendant or detained person could be jailed for an alleged crime and "does not have sufficient money, credit or property to employ counsel," the judge should assign a lawyer. The judge's decision is discretionary.
Lawyer fees can be thousands of dollars, and lawyers often ask for retainers up front. Poverty guidelines don't always tell the whole story.
"I know $40,000 a year seems like a lot, but if you have three kids and a house payment, where's that extra income going to come from? You're looking at $1,000 to hire a lawyer, and that's on the cheap side," Judge John Schlimgen said. "We've all raised children. We have some idea of the expenses involved."
“I know $40,000 a year seems like a lot, but if you have three kids and a house payment, where’s that extra income going to come from? You’re looking at $1,000 to hire a lawyer, and that’s on the cheap side. We’ve all raised children. We have some idea of the expenses involved.”
John Schlimgen, South Dakota judge
On the Monday after the Thanksgiving holiday, more than 40 people in Hinrichs' courtroom were either assigned a public defender or had a previously assigned public defenders reappointed on new charges. People who ask for a lawyer generally get one, Hinrichs said.
The numbers were higher but logical, as most of those defendants were in custody because they couldn't afford to bond out of jail after their arrest. Minnehaha County's proposal concerns only those who bond out and then later ask for a lawyer.
"If they can afford to get out, that's some indication that they have the ability to access funds when they need to," said Judge Larry Long, who presides over the 2nd Circuit and is helping the county review the process.
Appointments are common with out-of-custody defendants, as well. Karl Thoennes, Court Administrator for the 2nd Judicial Circuit, tracked applications for out-of-custody defendants who made their first court appearance between Oct. 20 and Oct. 24. Out of the 390 cases set that week, 84 defendants asked for court-appointed counsel. Only three applications were denied.
Thoennes doesn't know whether any of those defendants willfully or accidentally misrepresented their income, but he knows one thing: "The defendant can put anything they want on the application. Nobody does any verification on them at all."
The weekly numbers, stretched out over a year, make for a staggering caseload. The public defender's office is on pace to crack 7,000 cases this year, and 62 percent are misdemeanors. As of Tuesday morning, the public advocate's office had 1,538 cases to split among six lawyers.
Minnehaha County isn't the first jurisdiction to ask these questions. From 2001 to 2003, Lancaster County, Neb., piloted a project aimed at scrutinizing appointments.
The county offered screening staff to assist clients in filling out their applications. That part of the program was well received, according to a report on the project from 2003. The benefits of verification were less clear, wrote University of Nebraska-Lincoln program evaluator Liz Neeley.
There were cases where the screener found inaccurate information, but most inaccuracies weren't serious enough to warrant prosecution or even removal of a court-appointed lawyer.
In Minnesota, a 2010 Audit Report of the state's public defender system looked at the issue of eligibility and verification. A random sampling of applications found some discrepancies but noted that "most applicants appeared to be very low income."
The Minnesota report did say that screening, which can be as simple as asking a defendant how they pay for food or gas, was helpful.
County Commissioner Jeff Barth says he's more interested in the checks as a deterrent.
"If we caught a couple of people, there would be fewer people lying about it," Barth said.
Judge Long agrees, saying that catching a few high-profile cases of abuse would send a message.
"Everybody's interested in getting accurate information, everybody's interested in finding the people who are gaming the system. What we're trying to find is an efficient way to address that without gumming up the works."
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