Just a handful of basic questions stand between accused criminals claiming to be indigent and trained attorneys willing to fight for them in court.
Do you have a job? How much do you earn? How much are your monthly bills?
Most of the time, according to legal experts and court officials, accused offenders applying for court-appointed attorneys answer truthfully — they are signing the paperwork under penalty of perjury after all. But, according to officials within the state’s judicial system, there is no systematic procedure in place to verify that recipients of court-appointed counsel are being honest about their finances.
That means some of the accused could be taking advantage of an indigent defense system that is largely supported by taxpayers and already spread thin, with the gap between what is spent on public defense and what is paid back by accused offenders widening.
Johnson County District Associate Judge Stephen Gerard said the gap shows there are problems with the system, but it isn’t broken.
“It’s always going to cost the public to provide attorneys for indigent people because that’s what our constitution requires,” Gerard said. “But I think we can close the gap by making some changes.”
In the 2011 budget year, indigent defense services in Iowa cost $54.7 million, according to the Office of the State Public Defender. Yet the Iowa Judicial Branch received just $5.8 million in payments that year from accused offenders who used the state’s indigent resources.
The growing gap is caused, in part, by offenders’ failure or inability to pay back the cost of their defense. And the balance falls to the taxpayers.
The Legislature has boosted funding for public defenders to help cover rising costs — the number of indigent cases in the state grew from 128,398 in 2009 to 157,770 in 2011. With more indigent offenders applying for counsel, some experts and officials wonder whether there are ways to improve the system and become proactive in reducing the payment gap.
That could include a more careful review of who gets court-appointed attorneys and a more focused effort on getting accused offenders to pay off their debts.
“We’re always looking for other ideas and other opportunities to be sure we’re using the limited resources as best we can,” said State Public Defender Sam Langholz.
For the most part, Langholz said, judges make appropriate decisions about who gets attorneys. Still, he said, offenders on occasion have abused the system.
“In the course of an investigation of an underlying offense, it comes to the attention of the prosecutor that something doesn’t seem quite right,” Langholz said. “Perhaps this person could have afforded counsel.”
Langholz said it would be impractical to assign investigators to verify every indigent defense application, but the system might benefit from a regular audit to occasionally check for possible perjury.
Iowa’s Judicial Branch has been hit hard by budget cuts in recent years. It lost 11 percent of its workforce in the 2009-10 state budget cuts, leaving it with fewer court reporters, postponed hearings and shorter days for clerks of court offices.
Judge Gerard said the courts can’t afford to verify the financial information of every indigent applicant or even focus on collecting court-ordered fees and fines, including those assessed to indigent defendants for their appointed attorneys.
Still, he said more judges need find ways to collect fines and fees.
“It’s a responsibility to taxpayers for us to do it,” ge said.
If courts more often followed through in collecting payments, Gerard said, the indigent defense gap might begin to shrink.
“If defendants who apply for court-appointed counsel know they’ll be held to pay back their debt, it might keep the service contained to only those who really need it,” he said.
Gerard said courts typically do very little to verify financial information submitted on indigent defense applications, but he still believes most appointments are appropriate. Applicants usually tell the truth about being unemployed, Gerard said, and even those with jobs usually can’t afford a private attorney.
In many cases, Gerard said, judges have to do what they were appointed to do — make judgment calls. For example, when the father of an Iowa City sexual assault suspect was arrested in April on suspicion of trying to pay off his son’s accuser, he applied for a public defender.
In Xuefan Tang’s first application, he listed $4,000 in assets and $4,000 in monthly bills. He was denied. Tang reapplied the next day with different answers, indicating his only assets were in a 25-square-foot house he shares with family and that he owed friends and relatives $38,000. That time he was approved.
In Tang’s case, Gerard said, the court determined family members helped him and his wife fly to the United States after their son’s arrest, and the couple actually was indigent. And, he said, courts sometimes default to assigning public defenders in an effort to sustain the mission of the indigent defense system: to uphold the constitutional right to be represented by counsel.
University of Iowa law professor John Whiston said he thinks there are benefits — financial and timesaving ones — to providing counsel for all defendants upfront.
“I think everyone in the system realizes that it works better if the defendant has a lawyer,” Whiston said.
As for closing the payment gap, Whiston said, he thinks the state might simply need to adjust its expectations of offenders.“We are creating an underclass of people that owe the state huge amounts of money that they are never going to be able to pay,” Whiston said.