Down at the county courthouse it's raining lawyers. Pull up to the circle in front and they'll throw a public defender into your car. OK, it's not that bad, but it isn't that far off, either. At present, virtually anyone accused of a crime who is willing to fill out an affidavit is given a public defender, regardless of where he lives, what he owns or how much money he makes.
According to NC law, a person who is indigent or poor is entitled to an attorney paid for by the state if said person is accused of a crime. The problem is that nobody checks these people's financial status, because the state fired the court's three indigency screeners in 1994 during a tough budget year. The screeners would verify whether people who filled out affidavits really couldn't afford a lawyer. Now, nobody knows.
A recent review of cases heard at the courthouse over the last few years showed that defendants whose assets would have thrown up red flags for an indigency screener are regularly being assigned public defenders or private attorneys who are paid by the state to represent them. Several owned or lived in homes with tax values of $120,000 to $155,000. The address given by one person who was charged with DWI was a house with a tax value of $438,000.
One man who asked not to be identified acknowledged that he was solidly middle class and gainfully employed, but said he got the impression when he went to court that everyone got a public defender. "They just gave me the papers and I signed them," he said.
The practice has become so brazen, local criminal lawyers say, it's gotten to the point that public defenders regularly ask judges not to put their clients in jail because they have good jobs and might lose them.
State and local justice system officials appeared to be at least somewhat aware of the situation when they heard about the kinds of people who were regularly being assigned public defenders.
"I don't think those people are indigent, especially if they are in fairly low-level cases," said Tye Hunter, executive director of the state's Office of Indigent Defense Services. "I don't want to speak for the district court judges, but my impression is that they don't think they have time to determine whether somebody really is indigent or not, and it saves time and, in the long run, money to get this person lawyered up, so they work their way through the system."
Isabel Day, Mecklenburg County's public defender, said that in some ways, the system works more smoothly now without the screeners. "Before, when the screeners were in place and the judges were more restrictive about assigning counsel, there were a lot more continuances in court because people didn't realize that an attorney would be expensive and so they'd show up without an attorney and their cases would be continued several times," said Day.
A recent ruling by the US Supreme Court expanding the right of defendants to a public defender has also impacted the volume of clients her office sees, said Day.
Exactly what financial impact the ruling and the lack of screeners have had on court system budgets is unknown. For the last two weeks, Creative Loafing has been bounced back and forth between the three agencies that handle various parts of the indigent defense system. What we have been able to ascertain is that since the screeners were fired in 1994, the number of public defenders in the county's public defender's office has grown from 21 to 38. An unknown number of defendants are "farmed out" to state-paid private attorneys after they pass through the public defender's office. These defendants include "overflow" whom the Public Defender's office lacks the resources to handle and those who are charged in cases with multiple defendants.
Anecdotal evidence and budget numbers from 2003 suggest that the state budget for indigent defense in Mecklenburg County has ballooned. That year, the state spent $5 million on indigent defense services for this county and $3.4 million on the public defender's office. To put that in perspective, the district attorney's office, which prosecutes the same defendants, got $3.5 million in state funding that year.
The indigent defense budget grew so much a few years ago that the state office that oversees the courts created a separate bureaucracy to handle it because it was beginning to hurt local court funding.
"There was this massive line item for indigent defense services and the legislature looked at that as part of the court budget," said Trial Court Administrator Todd Nuccio. "So what was said is, let's just make them their own organization so it doesn't hurt the overall court funding."
Nuccio said his office and Hunter's Indigent Defense Services office met recently about the possibility of hiring an indigency screener for Mecklenburg County, but so far, no action has been taken.