You Need to Prove to the Court That You Are Indigent
Video Transcribed: Can you get a public defender if you bond out, bailout in the state of Oklahoma? I’m James Wirth, a Tulsa lawyer, and that is what we have.
Somebody who has been arrested, charged with a crime, has a bond amount set and wants to get a public defender because they can’t afford their own representation. Can they do that even if they bond out? And essentially what happens is if you are indigent, if you cannot afford an attorney, you file a pauper’s affidavit, and under oath you indicate what means and resources you have. You file that with the court, and then the court makes a determination whether you’re indigent or not. If you’re indigent, you are entitled to a public defender that the court or I should say the State of Oklahoma, finances and pays for how. However, how does a bond or paying a bond and getting out of custody or bailing out affect that?
Okay, well, there’s the old law, and I could say what it provides, and then I’ll tell you what the new law provides. The old law, which was actually superseded on November 1st of 2018, says, “If a defendant is admitted to bail and the defendant or another person on behalf of the defendant posts a bond other than by personal recognizance, this fact shall constitute a rebuttable presumption that the person is not indigent.” So essentially, that creates this presumption that if you bonded out, if you bailed out, that you can afford your own attorney, and you have to overcome that presumption to prove that the burden on you proving that you’re indigent in order to get a public defender.
That law went out on November 1st, 2018, replaced with the new one. The new one says, “If the defendant is admitted to bail and the defendant or another person on behalf of the defendant posts a bond other than by personal recognizance, the court may consider the such fact in determining the eligibility of the defendant for appointment of the system, provided, however, such considerations shall not be the sole factor determining eligibility.”
So it went from being a rebuttable presumption to being a factor, and it can’t be the sole factor. So the law changed. However, in practice, we still see a lot of judges handling it the same way they did under the old law, which essentially almost shifts the burden and requires the defendant to rebut the presumption if they have bonded or bailed out, even though it could be somebody else using their own funds, not the defendant’s funds in order to bond out. However, note the change in the law. And if you’re in court, then you should be aware that that’s the case, that you file your pauper’s affidavit, demonstrating that you’re indigent. But the burden should not be placed on you to rebut a presumption just because you bonded or bailed out.
All right, if you’re dealing with a criminal charge in the state of Oklahoma, you’re going to want to talk to an attorney specifically and confidentially about your circumstances, not just take general information from a video such as this. But to get a consult with an Oklahoma criminal defense attorney at my office, you can get that scheduled by going online to makelaweasy.com.
