The New Jersey Supreme Court has ordered the Administrative Office of the Courts to modify current procedures defendants must follow when applying for a public defender. According to the New Jersey Star Ledger, applicants who were previously told all information on their pd application would be confidential must now be informed that their financial data may be disclosed to the state in “appropriate” cases.
Based on this article alone, it appears those “appropriate” cases would be any that a prosecutor would like. As the court said, its decision “facilitates the state’s ability to prosecute false swearing and fraud,” because, you know, the more far-reaching power we give the state, the better!
In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.
Certainly in these times where public defenders nationwide are overworked and underfunded its important to make sure we are only representing those clients who truly qualify for our services, meaning those who really cannot afford private counsel. That said, the determination of indigence should be made by the public defender, it should be confidential, and there should be a fairly high barrier to any challenge to such a decision (by either a client denied or by another party). At the very least courts should require in camera inspection of any financial documents before turning them over to the state. Perhaps NJ is planning to do that. If not, it should.