Warning that a contrary decision would risk a constitutional violation, the Colorado Supreme Court ruled 5-2 that defendants are entitled to an appointed attorney when they personally do not have access to sufficient funds – even if they live with people who do.

The Court’s majority reversed an Arapahoe County Court judge who found Nicholas Feyd Greer was not indigent because Greer, who lacked a job and an income, was financially supported by his parents. But that determination, wrote Justice Carlos A. Samour Jr., did not account for the fact that Greer had no access to his parents’ funds, and practically speaking would have proceeded to trial without an attorney.

“Balancing his assets (zero) against his liabilities (zero), as well as his income (zero) against his living expenses (zero), means that he has zero dollars to pay for an attorney,” Samour explained in the majority’s Jan. 31 opinion. “Why, then, should that income be considered in determining whether he has the necessary funds to retain counsel?”

Prosecutors in Arapahoe County charged Greer in March 2021 with careless driving and leaving the scene of an accident. Greer applied for court-appointed counsel and claimed he was indigent. He and his daughter lived with his parents, and Greer listed the household’s monthly income as $7,200. 

Instructions on the court’s paperwork clarified that income from “roommates” did not count if it was unavailable to the defendant. The form was the product of a policy statement, known as a chief justice directive, originally issued in 2004 pertaining to the appointment of counsel for indigent defendants.

The public defender’s office and the 18th Judicial District Attorney’s Office both agreed Greer was entitled to a court-appointed attorney. His parents reportedly indicated they would not pay for one, and there was no legal mechanism to force them to do so.

However, County Court Judge Joshua Williford denied the request.

“He’s getting a lot of benefits” from his parents, Williford said of Greer.

The Supreme Court agreed to hear the appeal directly. The district attorney’s office changed its position, now believing Williford was correct to deny Greer an appointed attorney. The Colorado Attorney General’s Office, representing Williford, cautioned about the “gamesmanship and loopholes” that could ensue if the justices ruled that household income does not count toward a defendant’s individual ability to pay.

“A criminal defendant with ample assets could easily transfer them to a spouse, domestic partner, or parent living in the same household, have that person continue paying all of their expenses while claiming no ability to access the assets, and yet still qualify for court appointed counsel,” wrote Assistant Attorney General Emily Buckley.

Samour acknowledged the concerns about gamesmanship, but added that the application for court-appointed counsel comes under penalty of perjury. He indicated the majority would rather err on the side of granting someone a public defender, even if they were ineligible, than risk having someone who is truly indigent proceed to trial without a lawyer.

Samour invoked the U.S. Supreme Court’s landmark Gideon v. Wainwright decision, which established a right to a court-appointed attorney in felony cases and prompted the creation of the Office of the Colorado State Public Defender.

Gideon’s conclusions “ring hollow if we interpret our indigency guidelines so as to deny court-appointed counsel to an accused who, on a practical basis, lacks the necessary funds to retain an attorney,” Samour wrote.

Justice William W. Hood III dissented, and Justice Monica M. Márquez joined him. Hood questioned why the chief justice could not amend the 2004 directive if the language was problematic. He also believed the new rule would lead courts to simply look at a defendant’s personal income and bank accounts, instead of the household’s income.

Hood suggested a study of how to better define indigency. Perhaps, he wrote, “we would do better to abandon the use of the federal poverty guidelines altogether and move to a more ad hoc means-testing scheme.”

The case is In re People v. Greer.