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Ruling on indigent defense puts Utah leaders in tough spot
Courts • Defendant could hire attorney but couldn't afford handwriting expert.

By Aaron Falk The Salt Lake Tribune

Published October 17, 2011 10:33 am
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
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Bransen Parduhn needed a handwriting expert to fight the forgery charges against him and found himself in a legal no-man's-land.

Now, after a trip to the Utah Supreme Court, the 25-year-old Murray man's fight to get public funding for defense resources despite having enough money to hire a private attorney has ended in another conundrum. 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.

In a 4-1 decision handed down late last month, the state's highest court reversed trial court decisions in three cases of defendants who had hired private defense attorneys but were otherwise determined to be indigent.

"[The ruling] re-establishes what already existed," defense attorney Jonathon Grimes, who represented Parduhn, said, "which was a constitutional right for the poor to have lawyers and a defense."

Parduhn was appointed a public defender but, after receiving a cash gift from his grandmother, decided to hire Grimes, who agreed to take the case at a reduced fee. The money Parduhn paid to his attorney, however, did not cover additional expenses. A 3rd District judge found Parduhn to be indigent, but nevertheless denied public funds to hire the expert, something he would have been afforded had he continued to be represented by the Salt Lake Legal Defender Association.

In its decision, the Utah Supreme Court found that "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."

Justice Thomas Lee, in dissenting, wrote: "By opting out of the government's designated defense provider, a defendant has likewise lost the resources it provides. That result is the natural consequence of the defendant's choice, and it offends neither the Constitution nor the governing statute."

The ruling has leaders throughout Utah — one of just two states in the country that leaves defense service funding to the individual counties — in a tough spot.

"We have a constitutional duty to protect indigent defendants," Salt Lake County District Attorney Sim Gill said. "But we have just as much responsibility to safeguard the public dollars."

Officials said it was too early to determine how much demand for publicly funded resources, such as lab work, investigators and medical experts, would increase or what the financial impact might be. But Grimes said the potential hit is "a lot smaller in reality than in the imagination."

Judges consider attorneys' fees in determining whether a defendant is indigent and large fees would make it hard to persuade the court that a defendant cannot afford her own investigators and experts, he said.

Utah County Attorney Jeff Buhman sees two options for counties: seek a change to the statute or use more tax dollars to cover the increased demand for services.

In difficult financial times, that's a concern for county leaders.

"County budgets are always tight," Buhman said. "But these last few years, there's no extra money."

Salt Lake County officials plan to address the statute, possibly during the January legislative session, Gill said. "If we don't have that clarification, there continues to be a financial exposure not only for Salt Lake County but for every other county as well."

Grimes, meanwhile, said he would like to see the county contract with a panel of investigators and other experts, which he believes would cut costs compared with hiring them on a case-by-case basis.

It does, however, remain to be seen whether money for such resources would come from the counties or out of the existing budgets of the public defender associations. In a separate Utah Supreme Court ruling last month, the justices reversed a trial court's determination that the LDA was obligated to pay for one defendant's experts — but the decision was made on other legal grounds, leaving room for debate on the topic.

Attempts to reach LDA officials this week were unsuccessful.

Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, said the constitutionally mandated indigent defense funds cannot afford to be cut.

"If they were to cut budgets from existing services to create a new fund, our organization would adamantly oppose that, and we would file a lawsuit if necessary," he said.

afalk@sltrib.com

Twitter: @aaronfalk



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