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Sunday, May 5,2013

Appeal: Denying student public defender was plain legal error

By Jim Phillips

A local judge was just plain wrong, according to the Ohio Public Defender's office, when he ruled that a 21-year-old Ohio University student doesn't qualify for a public defender attorney because her parents help pay her expenses. And by ruling as he did, an agency attorney has argued, Athens County Municipal Judge William A. Grim may have endangered the county's ability to get reimbursed for public defender costs.

PD attorney Jason A. Macke filed an appeal brief Tuesday in the case of student Kelly Kasler. In it, he argues that when Grim ruled that Kasler's parents' income had to be considered in deciding whether she was financially indigent, he made multiple errors of law.

Kasler, of Vandalia, Ohio, is charged with obstructing official business and resisting arrest, based on an incident that took place last Halloween weekend.

She applied for a court-appointed attorney, but Grim ruled that "a young adult who is financially dependent on his or her parents but may have a temporary separate residence… is a member of her parents' household and does not qualify for appointed counsel." The PD's office has appealed that ruling to the 4th District Court of Appeals, and Grim has put Kasler's trial on hold while the appeal proceeds.

In his merit brief, Macke cites an Ohio Supreme Court opinion, which says the right of a defendant to have appointed counsel "depends, not upon whether the accused ought to be able to employ counsel, but whether he is in fact unable to employ counsel."

In Grim's ruling, Macke claims, the judge "fails to abide by this principle." Instead, he says, the court "ignores the plain text of the Ohio Revised Code and Ohio Administrative Code," and relies on a "wholly inapposite definition of 'household income' from federal income tax credit law."

In his ruling, Grim said the federal tax code language "best reflects financial reality," by classifying young adults who are financially dependent on their parents for tax purposes, health insurance, or living expenses as members of their parents' households. This approach, Macke contends, is flat wrong.

"Although the trial court denies that it has made a 'policy decision'… its opinion is nothing but," Macke claims. "This is proven by the fact that the court bases the wholesale rejection of the administrative rules and guidelines governing the determination of indigency on an irrelevant federal tax statute."

Macke notes that under Ohio law, Kasler's parent's have no duty to support her or pay for her defense. And though state laws and regulations regarding indigency do not include an explicit definition of "household income," the administrative code goes into detail on what types of income and assets should be included determining indigency, and they don't include the assets of someone with no duty to support the defendant.

Grim questioned the authority of the Ohio Public Defender's office to set indigency standards, suggesting this is the job of the Ohio Public Defender Commission. But because the PD's office sets guidelines for reimbursing counties for appointed counsel costs, Macke writes, it is "inherently required to determine which cases qualify for reimbursement," and its standards-and-guidelines document clearly states that no one can be denied a PD based on the financial status of a household member who has no duty to support the defendant.

Therefore, Macke warns, "The trial court's decision has the unintended consequence of putting Athens County's state indigent defense reimbursement funding into question, an impact the trial court clearly failed to consider."

In addition, he argues, a court that forces a defendant who can't afford counsel to proceed with trial "ties its own hands at sentencing," because Ohio criminal rules say if a defendant charged with a petty offense can't obtain counsel, a judge can't sentence the defendant to any jail time.

Finally, Macke maintains, Grim's decision "makes little sense as a policy matter." By tying Kasler's right to counsel to her parents' income, he says, the ruling creates "a perverse incentive" for the parents to cut her off from financial support completely, so she'll qualify for a PD. It also seems to suggest, he says, that if unrelated adults are living together, they must combine their incomes to determine if one of them is indigent.

Given all these issues, Macke argues, the best practice should be to "err on the side of providing appointed counsel, rather than take a harsh approach about establishing that an applicant is indigent, which will inevitably lead to injustice."


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