An Austin nonprofit group joined the ranks Tuesday in warning McLennan County of the problems that could follow if changes aren’t made to the county’s indigent defense program.
Claiming constitutional violations and legal questions, the Texas Fair Defense Project told commissioners the program — which investigates defendants’ claims of indigence before paying for their defense — forces residents to choose between their Fourth and Sixth Amendment rights.
The county replied that there is a misunderstanding about how the process works and that individual rights are very important.
Since the McLennan County Sheriff’s Office started investigating indigence claims in November, Detective Eric Carrizales has arrested two people on the charge of tampering with a government document and the county has seen a 40 percent drop in requests.
News of the decrease spread as far as The Washington Post, inciting controversial responses to the change and raising questions about the county’s indigent defense application procedure.
County Judge Scott Felton told the Austin nonprofit group Tuesday that the county thinks some of the statements that “have been made by several publications may be a little bit off.”
Judge Ralph Strother of Waco’s 19th State District Court, the county’s local administrative judge, said he was “somewhat dismayed that some blog writer at The Washington Post concluded that we have a policy that we don’t have and have never had and will never have.”
“The impression that was left was that indigent defendants are having to waive their Fourth Amendment right against unlawful search and seizure in order to exercise another right to have counsel,” Strother said. “We would never condition one right on giving up another right. We never adopted a policy like that. That is a figment of someone’s overactive imagination.”
Strother said he spoke with a policy monitor at the Texas Indigent Defense Commission to “try to clear up this impression that The Washington Post blog writer left.” No one that is indigent is being denied a court-appointed attorney, he said.
“The last thing a judge of a criminal court wants is a bunch of pro se litigants,” Strother said.
Felton said the county is looking internally to ensure it is not violating people’s rights. He said the 40 percent drop does not represent a chilling effect on residents but is the result of an overwhelmed and understaffed department. Felton said there was an increased workload that causes a lot of paperwork to go through the system incomplete.
Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about the answers.
Cathy Edwards, McLennan County indigent defense coordinator, said she received as many as 50 applicants a week before Carrizales’ arrival and that she now sees about 30.
The Post article fell in line with concerns expressed by statewide officials months ago, who worried that the change could intimidate applicants or cost the county more money by putting people back in jail after making minor mistakes on the form.
But proponents say it has created a faster, more reliable and honest system.
Jim Bethke, the executive director of the Indigent Defense Commission in Texas, said earlier this year that the county’s process raises more questions than answers.
He and Andrea Marsh, the Texas Fair Defense Project executive director, say they think no other jurisdiction in the state does the same thing as McLennan County.
Bethke said that if a person does not qualify, he or she should not be given counsel.
“I would be asking, ‘What assistance is given to that person in filling out those forms?’ ” Bethke said. “Verification is good. Do you need to verify every person that comes through the system? I don’t think so.”
Bethke said Tarrant County requires applicants to bring in financial paperwork and submit that for review, rather than investigate after submission.
“That money is being wisely spent on the front end of the process,” he said.
Marsh told commissioners Tuesday that one of the problems is that a defendant may think he has to cooperate with a sheriff’s deputy who shows up at his door in order to get a court-appointed lawyer.
Defendants need to know they can refuse to allow the deputy in, without it affecting the ruling on their right to appointed counsel, she said.
Defendants often fill out the documents from behind bars, where they don’t have access to financial information, Marsh said. There is also concern about potential literacy complications, she said.
Sheriff Parnell McNamara said in an earlier interview with the Tribune-Herald that the county’s main goal is to make sure that people who need assistance get it, and not those who don’t deserve it.
“We do not apologize for that,” McLennan County Sheriff’s Deputy Matt Cawthon said.
Cawthon said this is “crime prevention at its finest,” referring to the 40 percent drop. Lying on a form is a felony, and “we’re not going to tolerate it,” he said. He said the county doesn’t chase down borderline issues, only flagrant disregard for the law.
Defense Attorney Robert Callahan said he would like to see the county cut down on fraud but also make sure constitutional rights are honored.
“As a conservative-minded taxpayer, I appreciate the effort that the county is paying to save me money, but it is important to remember that a person’s financial means may change,” Callahan said.
$4 million a year
Strother said the program hasn’t been around long enough to definitively show whether it is cost-effective and efficient. He said the county has the right to inquire on at least a random basis to see if people who are asking for attorneys at taxpayers’ expense are telling the truth. He said the county spends $4 million a year to fund lawyers for indigent defendants.
“I think we are entitled to some honest answers about whether they can really afford a lawyer,” Strother said.
Marsh, with the Texas Fair Defense Project, said in a previous interview that the law allows for reimbursement if a defense attorney thinks a client was dishonest about his indigence.
If at the end of a case a court finds that a defendant has the ability to repay in whole or part, the defendant can be ordered to pay that, she said.
There already are ways for the county to seek reimbursement, even if the person was indigent at the beginning of his case, Marsh said.
“I really don’t think felony prosecution is the appropriate way to deal with that,” Marsh said.
Also, unless a person has substantially more assets than he claims, the county will spend more prosecuting than whatever degree of fraud might be involved, she said.
“If they weren’t indigent before, they might be now,” she said.
“In my view, using a felony prosecution is really only appropriate in a case where you identify someone who significantly misstated their financial situation and they did so intending to defraud the system.”
Help on forms
Carrizales said he and Edwards help people fill out their forms and that he emphasizes the need to be honest on them. This help includes letting indigent applicants take the form home or retrieve their financial documents.
Carrizales wouldn’t speak in detail about either of the two men the sheriff’s office have arrested on charges of tampering with government documents, but he said “there wouldn’t be an arrest made unless there was probable cause.”
“I don’t arrest people for mistakes,” he said. “In order to arrest, I have to prove that there was intent to defraud.”
Carrizales said people are more honest now because of the change.
“Even defense attorneys have contacted me saying they like it,” he said.
But Carrizales said sometimes people will leave and not return after he speaks to them about the need for honesty on the documents. He said it isn’t uncommon for him to mention that he may pay a visit to a person’s home or ask a few questions, and the person then leaves without applying out of fear of a deputy showing up on his property.
He also said any implication that he is violating defendants’ rights is untrue.
“We go talk to people, and they invite me in,” he said.
Carrizales said if there are incomplete or denied forms that he thinks may belong to someone who is indigent, he will show Edwards or one of the judges and help the person fill them out correctly.
“We’ve told people, ‘If you want to, go back and fill out the forms again,’ ” he said.