Needy or Not?

What's in your wallet? 

State v. Kittredge, 2018 VT 6 (mem.)

By Andrew Delaney

Mr. Kittridge got charged with a bunch of crimes, including neglect, manslaughter, and welfare fraud. He requested a public defender and the trial court denied the request at arraignment. Mr. Kittredge was released on a $25K unsecured appearance bond. He reapplied for a public defender and the trial court again denied the request because Mr. Kittredge’s income exceeded the financial guidelines. He moved to reconsider the public-defender denial. Again, the trial court denied the request because Mr. Kittredge’s “income and family size disqualify him from receiving a public defender.”

That brings us to SCOV’s door.

Generally, denial of public-defender services is left to the trial court’s discretion. In this case, however, SCOV considers “whether the trial court conducted the proper analysis in determining whether to appoint counsel.” This is a no-deference analysis.

Assessing a defendant’s eligibility for public-defender services involves an important constitutional right—assistance of counsel—and requires careful consideration.

Under the applicable statute, the trial court is first supposed to consider whether a defendant is “needy.” Then, the court determines the applicable copay. In making the needy-or-not determination, the trial court is supposed to consider factors like income, property owned, outstanding obligations, and the number and ages of dependents as specified in rules adopted by SCOV.

One rule SCOV has adopted is a presumption that folks who receive any kind of welfare as a substantial portion of their income are needy. Also, folks below the poverty guidelines for nonfarm families are presumed to be needy. But that doesn’t make the inverse true—just because someone doesn’t fit in one of those two categories doesn’t make them automatically not “needy.” So, there are the income, assets, and family size factors—which are non-exhaustive—and there’s whether hiring an attorney is going to send someone to the poorhouse. When I started out as an attorney, I used to explain to potential clients that I wouldn’t be able to afford myself if the need arose.

SCOV notes that the trial court must make specific factual findings to facilitate meaningful appellate review when public-defender services are denied. Even if a person does not qualify as “needy,” the trial court still has to determine a copay commensurate with the person’s ability to pay. SCOV further notes that the Legislature’s inclusion of copay-calculating guidelines for when family income is more than 200% of the applicable poverty level strongly indicates that the whether-a-person-is-needy question doesn’t end with the poverty-line analysis.

SCOV reasons that the trial court’s conclusions in this case—that defendant’s income “exceed[ed] financial guidelines”—didn’t appear to go beyond the presumptive-needy-person inquiry. These are the only findings SCOV has to work with.

So this one gets kicked back to the trial court for further findings and proceedings. Mr. Kittredge can file a new public-defender application if his information is no longer accurate.