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Indigent criminal defendants in Massachusetts get a free, court-appointed defense attorney when the charges at issue are punishable by incarceration.

The process for determining who qualifies for a court-appointed attorney is outlined in M.G.L. c. 211D, § 2A.

Prior to arraignment, every criminal defendant must check in with the court’s probation department.  At this initial meeting, defendants who want a court-appointed attorney must complete an intake form used to assess their financial status.

Along with the intake form, defendants seeking a free lawyer must also sign a waiver allowing the probation department to verify the applicants’ income and assets with the department of revenue, the department of transitional assistance, and the registry of motor vehicles.

The data collected by the probation department will be given to the presiding judge at arraignment.  It is up to the judge to determine whether counsel will be appointed.

The judge may make one of three rulings:

  1. The defendant is indigent and counsel should be appointed.  There is a $150 “counsel fee” which all indigent defendants must pay, unless expressly waived by the judge.
  2. The defendant is indigent but “able to contribute.”  Under these circumstances, the court will appoint a lawyer to represent the defendant but the defendant must contribute a “counsel fee” above $150.
  3. The defendant is not indigent and therefore not eligible for free representation.

For the court’s definition of “indigency” see  Supreme Judicial Court (SJC) Rule 3:10.

Within seven days of arraignment, the probation department must verify the defendant’s indigent status with the above-named state agencies.

Additionally, the probation department must re-evaluate the defendant’s financial status every six months.

Any dispute over the indigent status of the defendant will be resolved by the judge based on a preponderance of the evidence.

(For my thoughts on both court-appointed and private attorneys, see my post: Public Defenders vs. Private Attorneys.)