Mass. high court rules that defendants must prove they can’t afford a lawyer; court also says spouses, parents, and others may have to contribute

By John R. Ellement, Globe Staff

People facing criminal charges in Massachusetts have the burden of proving they cannot afford to pay for their own lawyer before a judge appoints a taxpayer-funded attorney for them, the state’s highest court ruled today.

The court also broadened the range of people who may be required to contribute to a person’s legal defense to include defendants’ spouses, parents, and even girlfriends and boyfriends.

In three companion rulings, the Supreme Judicial Court, ruling on the issue for the first time, said defendants are in the best position to detail their financial condition, not a judge or the state probation department.

“A criminal defendant is the party in possession of all material facts regarding her own wealth and is asserting a negative,’’ Justice Francis X. Spina wrote in the ruling involving Diane Porter, the owner of a home care company accused of failing to pay workers. “As such, she should be required to bear the risk of failure of proof.’’

In all three rulings, the court said requiring defendants to prove they are broke does not violate their constitutional right, guaranteed by both the state and federal constitutions, to a free lawyer if it’s financially necessary.

In the Porter case and in a second case involving alleged drug dealer Joseph Fico, the court also said judges can take into account the finances of spouses and girlfriends and may also consider the financial status of parents, even when the defendant is an adult.

“For, no doubt a variety of reasons, some adult children remain dependent on a parent or parents,’’ Chief Justice Roderick Ireland wrote in the Fico decision. “A rational connection exists between the status of a parent supporting a dependent adult child and that same parent’s willingness to extend that support to pay for legal counsel, in whole or in part, for his or her dependent adult child should the circumstances present.’’

Ireland also wrote that Fico’s girlfriend, who was accused along with Fico, was the primary breadwinner for the couple and as such her income should be included when determining Fico’s indigent status. (Ultimately, Fico hired his own attorney and resolved the criminal charges, the SJC said.)

In the Porter case, the couple reported a joint income of $60,000 and ownership of three properties including a single-family home in Revere with no mortgage that was assessed at more than $200,000.

“A spouse has a duty to contribute to the cost of necessaries for the support and maintenance of the other spouse,’’ Spina wrote. “In many cases — including the case at bar, where the alleged crimes involved a business that presumably benefited the defendant’s husband — legal fees will qualify as such ‘necessaries.’”

In the third case, which involved Thomas Mortimer IV, who is accused of murdering his two children, his wife, and his mother-in-law in Winchester, the SJC supported a state law that bans accused or convicted killers from drawing on financial assets that belonged to their victims.

A college fund created for the children Mortimer is accused of murdering cannot be tapped to pay for his defense, nor could bank accounts that were controlled by the women he allegedly killed, the SJC said.

However, Justice Robert Cordy wrote that some portion of an IRA that Mortimer himself controlled is legally available to him to be used to defray some of the legal expenses taxpayers will bear because Mortimer has been assigned a court-appointed attorney from the Committee on Public Counsel Services, the state’s public defender agency.

“Although the Massachusetts Legislature established the Committee for Public Counsel Services (CPCS) in order to provide representation for defendants unable to obtain counsel by reason of their indigency, the public funds supporting CPCS are not unlimited,’’’ Cordy wrote.

Cordy added: “Recognizing the importance of appointed representation, it is critical to conserve the limited resources for those defendants who are truly indigent and unable to fund their legal representation.’’

John R. Ellement can be reached at ellement@globe.com.