Imagine a defendant who is caught selling and possessing methamphetamine during a police raid. He is arrested and taken to jail, where he is booked and waits to see the judge. At the preliminary court hearing, he declares he cannot afford an attorney and would like the court to appoint him one. He fills out a financial information form, filling in a non-existing salary, the estimated value of his beat-up pickup truck, his mother’s address and a social security number. Based on the information, he appears to be indigent, and he is assigned an attorney at county expense, according to the rules of the Texas Fair Defense Act.

But what if he’s lying? Is it a small white lie, maybe underestimating the value of his car, but not enough that it would prevent the county from having to pay his defense expenses? Or is it a bigger lie, one that would have saved taxpayers from having to foot that bill, or at least have allowed that money to be spent on a more worthy case? What if he’s wearing a gold chain, owns a home, drives a different car, has a second job?

It’s logical to assume that some defendants will lie about their indigency status in order to get a free defense, but for years, counties have struggled to answer some important questions: How many defendants lie, and how much do those lies really cost? Is it still cheaper and better to just provide them a defense anyway, considering what it would cost to put screening and verification programs into place as well as the cost of jail space?

Until now, there haven’t been any studies detailing the relevancy and cost-effectiveness of screening and verification processes when it comes to providing indigent defense, said Jim Bethke, the director of the state’s Task Force on Indigent Defense, adding that many judges and financial analysts were skeptical about counties’ ability to save money via verification.

That’s why the task force commissioned a study, conducted by researchers at the University of Texas-Dallas and the UT Southwestern Medical Center, to get down to the nitty gritty cost-effectiveness of screening and verification, at least as much as possible.

The study, “The Costs and Benefits of an Indigent Verification Program,” was evidence-based and concluded that “a comprehensive screening and verification program would generate financial benefits for those counties with a sufficient number of criminal arraignments” with the caveat that the programs should not be mandated and that successful programs are successful because of dedicated and trained court personnel. “It cannot be assumed that the ease and efficiency of a system created in one jurisdiction is routinely transferable to other jurisdictions,” the report concluded. “This may be particularly true for county court systems in Texas, which have traditionally operated with considerable degrees of discretion exercised by local elected judges, and by a variety of local institutional, political and fiscal factors.”

A supplement to the original report included a study of the screening process in Travis County, which uses pre-trial services staff to screen for indigency and does not verify the information, but requests that defendants sign affidavits that the information is true. The supplemental report concluded that every county could save money by having a third party screen for indigency — not necessarily verifying the information that is given, but by asking defendants to give their financial information in-person to a third party.

The “third party screener” in some counties may be pre-trial services; in others, it could be a clerk’s office employee, an employee of the judge or specially hired financial screeners.

“Having a third party screen can increase fairness and consistency by providing a more uniform and accurate assessment of the defendant’s financial information. Judges in one study reported that they did not obtain nearly as much information on their own as third party screeners. Having a third party screen can also decrease the amount of time that judges, prosecutors, public defenders and other criminal justice personnel spend on the issue of determining indigency during a court appearance. This can help with docket control and increase the efficiency of courts. In smaller counties without the resources for a pre-trial services division, having court personnel do the screening may be the most feasible option,” the supplement report states.

“Counties that verify may also find that it adds a sense of fairness to the system by allowing those paying for court-appointed counsel to feel that defendants are not receiving government services to which they are not entitled,” it concludes.

Those close to the issue said they were surprised and impressed by the original report’s analysis — that if verification systems are put into place statewide, there is the potential that counties could collectively save somewhere between $2.12 and $5 for every dollar spent.

“There is certainly some skepticism that you could really save money using verification, just in general nationally,” said Wesley Shackelford, special counsel to the task force. “I personally didn’t think there were that many people who were trying to get free lawyers out there.”

But the Task Force staff said it found the supplemental report necessary because the first report was almost too mathematical for laymen to understand and they believed the benefits that seemed to come from having a comprehensive screening process — as opposed to verification — could be more broadly applicable across all counties.

Screening is different from verification in that focusing on screening implies information will be more complete; only certain information can be easily verified, so counties that use verification will have more accurate information, but less of it.

Not all counties currently screen or verify, partly just because they do not have a verification system in place, but many judges are also worried about the time limitations imposed by the Fair Defense Act for appointing counsel and may believe the cost of keeping someone in jail while waiting for the screening and verification process to proceed would be more costly than just appointing counsel when it is requested. Some judges assume that defendants wouldn’t want a court-appointed attorney unless they really couldn’t afford it, as a matter of either pride or distrust.

“We don’t do near what I wish we had the manpower to do,” said Wichita County Judge Woody Gossom, adding that in some of his county’s courts, defendants who request counsel are asked to fill out forms and testify that the information is true and accurate. They are then told that they will be appointed a lawyer, and that if the information is later shown to be inaccurate, they will have to pay after the trial is over. “We review the forms, we may check a couple things like property tax records.”

Collin County established a much more rigorous practice, which it applies to all defendants requesting an attorney. It uses Medicaid to verify public assistance, the local appraisal district site to verify whether the person owns a home and that the person is living in public housing, a private vendor to search for a person’s Social Security number if they did not provide it and the Texas Workforce Commission to verify employment and salary history.

The best practice, according to the supplemental report and Task Force staff, may be to create a comprehensive personal screening process while using the threat of verification to keep answers honest. It’s also possible to contract with the Texas Workforce Commission or a private vendor that uses an automated system to check a person’s employment history, credit report, background, criminal records and other information. (D-Med Corporation has partnered with the National Association of Counties and Dallas County to provide those services to interested NACo members at a discounted price.)

After the report’s results were in, the task force specifically went to the TWC to discuss the viability of having many counties contracting with them for indigent verification purposes. The cost of contracting with TWC is relatively low — $125 for 10,000 transactions or less, up to $9,400 if there are between 500,000 and 750,000 monthly transactions.

“Do you have to verify 100 percent of the applications? Probably not,” Bethke said. “If you verify 10 percent of the applicants and find that a large percentage of the people are lying, then you have to look at your screening process and see what went wrong.”

In some cases, if defendants are filling out applications by themselves while in jail or with the help of untrained jailers, they may just not know how much they make or what their assets are worth. They may not understand the questions or believe the county has the ability or desire to verify the information.

To determine exactly how many defendants were lying and the costs associated with those lies, the original study’s researchers looked at the verification methods already used in Collin County and adapted that process for Tarrant County, which had already invested funds to hire financial information officers to personally sit down with defendants and gather information during the screening process.

In Collin County, which has two regularly employed court officers trained on the tools used to verify defendants’ financial information, the researchers looked at the information of 60 sequential defendants and found that there were enough defendants lying about their financial status that verifying the information was saving the county more than $10 for every $1 spent on the process. Of the 60 defendants that had requested counsel, 10 percent had lied on their forms — not just white lies, but “relevant” lies that, had they not been caught, would have landed the defendant free counsel.

In Tarrant County, the results were slightly different, because each defendant was personally screened by the county’s trained financial officers before having their information verified, and because the researchers took a random sampling of 95 defendants instead of a sequential sampling. The financial officers, hired after the county received a discretionary grant from the task force several years ago, spend about 10 minutes helping each defendant fill out the financial forms and asking questions about the information provided — not verifying the information, but pointing out inaccuracies and testing defendants to see if they seem credible or not, said Holly Webb, the county’s criminal court support manager who oversees the financial officers.

“We have the financial officers trained so that if they look at the expenses and the income and it doesn’t add up, they keep asking questions until it’s clear that what is on the paper is what the reality is,” Webb said.

It was after that screening process — in which defendants were told their information may be verified — that random applicants were put through a rigorous verification process, similar to that used in Collin County. The study found that verification after the personalized screening still saved the county money, but less so. Only three of the 95 forms were found to have “relevant inaccuracies” that would have kept the county from paying those defense expenses, had those inaccuracies been caught. Still, the court-appointed attorney costs for those three defendants were greater than the costs of verification, and the analysts predicted that for every dollar Tarrant County invested in verification, it would save $2.54.

The analysts then looked at any factors that would make Collin and Tarrant counties distinct from other counties, and any factors that could change whether verification is cost-effective, such as the average cost per case spent on indigent defense, the number of indigent cases each county saw per year, the county’s screening processes, and the county’s threshold or definition of indigency.

The first difference evident among counties is the threshold counties use for defining indigency. Just how a county defines indigency could change whether verification is cost-effective; counties that use a more flexible definition of indigent or a higher financial benchmark may find it less appealing since more people qualify without having to lie.

According to the task force, 159 counties use statutory factors for determining indigency, meaning they collect financial information on a person’s income, assets, outstanding obligations and expenses in order to determine whether someone can “afford” counsel. Others use a percentage of the poverty guidelines to define indigency — 38 counties say that indigent defendants are those living at the poverty level, 54 believe they live at 125 percent of the poverty level; six counties agree to give counsel to those who live at 150 percent of the poverty level (26 counties are not accounted for; some use both statutory factors and a percentage of the poverty level to make their decisions).

In addition, 37 counties automatically assume a defendant is indigent if they are in jail, prison or mental health institution; 45 counties (including most of those 37) will agree to appoint an attorney to anyone who can prove they are already receiving other public assistance; 44 counties (also including most of those 37) have defendants

submit to a “substantial hardship test.” Substantial hardship tests take into consideration things like whether a person is caring for an elderly parent.

Both Collin and Tarrant counties consider indigent defendants to be those whose salary is less than 125 percent of the poverty level. But Collin County also allows for “partial” indigency declarations if a person makes a salary between 125 and 175 percent of the poverty guidelines. It also automatically approves defendants who are institutionalized or receive other public benefits, and allows defendants whose salary doesn’t fall at the poverty line to pass a substantial hardship test instead.

Another difference between the two counties was the average cost per case each was spending on indigent defense.

In Tarrant County, the average cost spent on indigent defense was $407.74 per adult indigent defendant (a total cost of more than $9.9 million); Collin County spent an average of $589 per case (a total cost of $2.8 million). Both counties appoint private attorneys to indigent cases, meaning that the annual indigent defense budget fluctuates based on the number of defendants approved for counsel. The costs are not fixed or made stable through contracts or public defender salaries. Collin County’s savings is a bit of an anomaly because its cost per case is significantly higher than the statewide average of $318.58.

Still, the analysts used the findings of the Collin County portion of the study and determined that if there are 497,377 cases statewide in which defendants are given a court-appointed attorney, and 10 percent of those cases would have been denied taxpayer-funded lawyers had the information been verified, the statewide cost savings of verifying information would be $4.01 for every $1 spent (a benefit/cost ratio of 5/1).

They then took the data gathered through the Tarrant County process, in which only a percentage of the cases were verified and just slightly more than 3 percent of the cases were determined to be fraudulent, and determined that, given that data, statewide, counties would save $2.12 for every $1 spent (a benefit/cost ratio of 3.12/1).

To determine whether an individual county could save money, the analysts took each county’s 2006 indigent defense expenditures and the number of cases in which counsel was paid for by the county.

The analysts estimated the total cost of verification, then assumed that about 4 percent of the overall expenditures was spent on providing lawyers to defendants who had lied about their income and were not actually indigent.

The researchers estimated that 31 counties — other than Collin and Tarrant — would save at least $1.50 for every $1 spent on verification, if they had a verification process in place.

The counties analysts predicted could save money by verification were Anderson, Bell, Brazoria, Brazos, Cameron, Comal, Ector, Ellis, Fort Bend, Galveston, Grayson, Gregg, Hays, Henderson, Hidalgo, Hunt, Jefferson, Kaufman, Lamar, Lubbock, Midland, Montgomery, Nueces, Parker, Potter, Randall, Rockwall, Smith, Tom Green, Victoria and Williamson. Those counties were predicted to save anywhere from $1.50 to $5.80 for each dollar spent on verification.

In addition, other counties could well save money by implementing screening steps but probably not as much as those 31, the study concluded. The reports can both be found online at the Task Force for Indigent Defense Web site, www.courts.state.tx/us/tfid/resources.asp.