Utah Court finds partially indigent have right to public funds for their defense

BY Jon Mosher on Thursday, October 20, 2011 at 12:21 PM

On October 17, 2011 the Salt Lake Tribune highlighted the potential impact of a recent Utah Supreme Court decision on county indigent defense budgets. In State v. Parduhn, the Court held: “local governments are statutorily required to provide an indigent defendant with funding for a necessary defense resource, even when the defendant is represented by private counsel.” 

Mr. Parduhn was accused of forgery and was unable to retain private counsel.  A relative gifted him funds to hire a private lawyer, but the gift was insufficient to pay for the handwriting analyst necessary to challenge the state’s evidence.  This is often referred to nationally as “partial indigency,” where a defendant is indigent and either an attorney volunteers to work pro bono or someone hires an attorney on behalf of the indigent defendant, but no funds are available for necessary expenses such as experts.  After Mr. Parduhn’s request to the trial court for county funds to hire an expert was denied, he appealed to the Utah Supreme Court.  As the Salt Lake Tribune report notes, “The ruling on Parduhn’s case has officials in some Utah cities and counties worried they will be left ‘financially exposed,’ and others are concerned about the impact on indigent defense efforts already deemed ‘chronically underfunded’ by a recent ACLU report.” 

Utah’s is not the first state supreme court to have ruled the right to counsel extends to the partially indigent.  In Arkansas Public Defender Commission v. Pulaski County Circuit Court, Ark. 224 No. CR10-120 (2010) the Supreme Court of Arkansas ordered the state-funded public defender commission to provide resources to a partially indigent capital-murder defendant, writing: “The United States Supreme Court ‘has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.’[] . . . Our [Arkansas] Public Defender Act defines an indigent person as a person ‘who, at the time his or her need is determined, is without sufficient funds or assets to employ an attorney or afford other necessary expenses incidental thereto.’” (Emphasis theirs.)  
And in State v. Ulysses Jones, Louisiana SCt. No. 97-KK-2593 (1997) the Supreme Court of Louisiana ruled that a partially indigent capital-murder defendant had a right to his retained counsel of choice as well as a right to co-counsel for his capital defense at public expense. “Part of the State’s obligation in providing effective assistance of counsel to indigent defendants is the obligation to provide the indigent defendant’s counsel with the basic tools of an adequate defense at no cost to defendant. . . The presence of retained counsel, be it from a collateral source or pro bono, should not work a hardship against an indigent accused who otherwise would be entitled to State funded auxiliary services.”
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