CASES ESTABLISHING THAT REPRESENTATION BY

PAID PRIVATE COUNSEL DOES NOT DISQUALIFY

A DEFENDANT FROM IN FORMA PAUPERIS STATUS

Delaware

Pendry v. State, 367 A. 2d 624 (Del. 1976):

As indigents, the defendants are entitled, at public expense, to all or such portions of the transcript of their trial as may be necessary for their appeals. [Citations and footnote omitted.] That right is not lost by an indigent defendant who has parents financially able to pay the expenses of appeal . . . or the fees of privately retained counsel. [Id. at 626; citation omitted.]

Florida

Arline v. State, 277 So. 2d 791 (Fla. App. 1973):

We know of no rule of law that precludes a person from being adjudicated and proceeding as an insolvent solely because he has the services of private counsel. [Id. at 792.]

Michigan

People v. Arquette, 507 N.W. 2d 824 (Mich. App. 1993):

[I]ndigence is to be determined by consideration of the defendant's financial ability, not that of his friends and relatives. [Id. at 826.]

Minnesota

State v. Pederson, 600 N.W. 2d 451 (Minn. 1999):

Several other state courts have addressed the issue of whether an indigent criminal appellant is entitled to a trial transcript at public expense when the appellant is represented by private counsel paid for by a third party. Those courts have all decided that the indigent criminal appellant is entitled to necessary trial transcripts at public expense. Most of these courts have based their decisions on the determination that, regardless of whether an indigent criminal appellant is represented by a public defender or by private counsel paid for by a third party, his status as an indigent entitles him to the transcript at public expense. [Footnote omitted.] The courts in these cases treat separately the issues of public defender representation and transcript costs. Under such an analysis, even though an indigent criminal appellant chooses not to accept one thing to which his indigence status entitles him -- representation by the public defender -- he may still choose to accept another thing to which his indigence status entitles him -- all or necessary parts of his trial transcript. [Id. at 453-54.]

[L]ike any other indigent criminal appellant whom the public defender offers to represent, Pederson is entitled to both the services of a public defender and a trial transcript at public expense. As we noted in [a previous decision], an indigent criminal appellant's entitlement to these things does not mean that he must accept them all. [Citation omitted.] We see no reason to force the state to pay for a service the indigent criminal appellant does not wish to use. Accordingly, Pederson has the right to refuse the services of the public defender, yet receive a trial transcript at public expense. [Id. at 454.]

Nevada

State v. Breen, 675 P. 2d 996 (Nev. 1984)

[This case] requires a determination of whether appellant's indigence status, insofar as that status relieved appellant from an obligation to pay for the trial transcript, was somehow affected, through a waiver or otherwise, by his acceptance of representation by private counsel retained by his parents.

The state does not contend that appellant's personal financial circumstances have improved since the district court's initial indigence determination. The state has cited no statutory or other authority, and we are aware of none, that would indicate that appellant's acceptance of private counsel in such circumstances would affect the county's obligation to pay for the transcript arising from the original determination of indigence. The courts directly addressing that question, in fact, have concluded that acceptance of representation by privately retained counsel does not constitute a waiver of indigence status. [Citations omitted.] We agree, and now hold that the acceptance of representation by counsel provided by a third party does not, in and of itself, affect an appellant's indigence status, at least insofar as that status relates to payment for trial transcripts. [Id. at 997.]

New Jersey

State v. Morgenstein, 371 A. 2d 96 (N.J. Super. 1977):

In denying the motion [for a transcript at public expense] the trial judge found that defendant was indigent within the meaning of the statute, but reasoned that by accepting private representation defendant "waived his right to insist that a transcript of the trial be furnished to him at public expense." [Id. at 97.]

We cannot agree that by accepting private counsel at the expense of his parents defendant thereby manifested his intent to give up his constitutional right to a transcript at public expense in the event of conviction. [Id. at 98.]

We are also urged to affirm the order below on the ground that defendant does not meet the statutory requirement that he be "unable, by reason of poverty, to defray the expense" of procuring the transcript. This is based on the stipulation that the parents have the financial resources to meet this expense and on counsel's statement that defendant's mother advised him that the parents would "come up with the money if they had to." [Id.]

All that the parents have done in this instance is voluntarily to relieve the public from the burden of providing defendant with counsel. There is nothing about this that alters defendant's status as an indigent adult. . . . His eligibility is to be measured by what he is legally entitled to as an indigent, and not by the contingent benefactions of others. By holding otherwise we would, in effect, be sanctioning the practice in similar cases or withholding the required assistance as a constraint upon parents or other close friends and relatives who also sense a moral duty to bear this cost rather than cause the defendant to forego his right of appeal. [Id.]

What defendant will be receiving from his parents are the legal services themselves as and when they are needed. He will not be receiving the funds to obtain the services. The choices open to defendant are either to accept or reject them, but in no sense do they relieve his poverty or constitute assets of a kind that may be applied to the cost of a transcript.

We find no deviousness or chicanery in any of this. As we have noted, the parents have no legal obligation to meet these expenses. [Footnote omitted.] However, if out of loyalty to their child they wish to provide him with assistance, they may do so as they choose, and the court is not free to instruct them as to how their funds must be allocated. [Id. at 98-99.]

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