A Larimer County couple hopes a lawsuit will force the Colorado State Public Defender’s office to reconsider representing them in a criminal case after the public defender initially found the couple had too much money to qualify for a publicly funded defense.
The federal lawsuit alleges the public defender’s office wrongly denied Dale and Sara Brubaker’s applications and ignored the state’s rules for evaluating defendants’ finances, instead making a subjective decision that raises questions about whether the public defender’s office is treating defendants equally across the state.
Dale and Sara Brubaker, who are 66 and 65, together earn less than $3,000 a year — an income so low they should automatically qualify for a public defender under the state’s rules. But they also have no debt, savings of about $125,000, two vehicles, a home in Wyoming and land in Colorado worth a combined $338,000 — which is why a Larimer County judge found they were not indigent and would need to hire their own attorneys to mount their criminal defenses.
“While there are some aspects of the financial situation (notably their lack of income) which give the Court pause, this is insufficient to overcome the unusually high amount of assets that the defendants own,” Larimer County District Court Judge Laurie Dean wrote in a May ruling denying the Brubakers a state-funded defense.
Both Brubakers were charged with felony child abuse, assault and tampering with evidence in August 2020 over an incident that happened in 2014, court records show. They could face more than two decades in prison if convicted. The married couple declined to comment through their attorney, Christopher Gregory, who is representing them in the lawsuit but not the criminal case.
While the lawsuit is straightforward, the criminal case is complex and more expensive. The Brubakers need to put on separate defenses that are likely to cost around $100,000 each, according to estimates provided to the court by five attorneys who reviewed the case.
Under the Colorado Supreme Court’s guidelines, people who earn less than a set annual income — for a two-person household it’s $21,775 — are automatically eligible for a public defender. If defendants have a higher income, their financial situation is run through an objective rubric and assigned a score based on various factors.
A total score above 150 points means the defendants qualify for a public defender. The Brubakers scored 200 points.
“They simply didn’t do their job with that screening,” Gregory said of the public defender’s office. “They came up with their own reason for a denial.”
“We look at someone’s application in total,” public defender Eric Vanatta told Dean during an April hearing, according to a transcript reviewed by The Denver Post. “I think it’s impossible to just take an application and run it through a rubric like you’re talking about and come out with some predetermined, you know, conclusion. In this situation…they’re simply not indigent.”
Vanatta added that it is rare for defendants to have an extremely low income but significant other assets, according to the transcript.
Maureen Cain, spokeswoman for the public defender’s office, declined to comment for this story, citing the pending litigation. But a response to an open records request from the Post indicates the public defender’s office does not track the number of applications it denies or the reasons for the denials.
That means it’s difficult to know if other low-income defendants across Colorado are also being denied based on their assets, or whether the Brubakers might have been approved for a public defender had they applied in another jurisdiction, Gregory said.
“It’s a very basic concept but it’s kind of the crux of everything here,” he said. “Whether you are applying for a public defender in Trinidad or Fort Collins, all the offices should be using the same standard, and they should be documenting how they are evaluating those applications.”
The public defender’s internal policies for determining indigence, obtained through the open records request, says the office follows the state Supreme Court’s guidelines.
A flow chart shows how eligibility is determined. It begins, “Does applicant’s monthly income fall into the first category on the income eligibility requirements?”
If yes, the flow chart indicates, “Applicant is automatically eligible for a public defender.”
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