Does the threat of a judgment or requirement that one reimburse the government for litigation costs if you are convicted so chill the defense from subpoenaing witnesses that the specter of reimbursement is unconstitutional?
Does one's indigence at the time of sentencing mean no monetary judgment can be entered?
The assumption in London is that the present inability to pay precludes ever having to pay. But, one's financial status is not static nor does a reimbursement order cause any harm to someone who has no property (assets) subject to being forcibly taken from him. Plus, collection will only occur if and when the ability to pay comes into existence. A nulla bona return of a writ of execution will always adequately protect someone "unable to bear the costs associated with his defense." This is much ado about nothing.
Perhaps part of the answer is found in Martinez, which clarifies that the open courts provision does not apply to criminal defendants. Court costs, generally, are merely a collateral consequence of a conviction and imposition is not prevented by indigency. The need to recoup costs provides a rational basis for treating indigents differently according to the type of litigation involved. The "stifled defense" theory still seems a stretch to me, but it is different in nature. Yet, the origin still seems to be equal protection as much as due process.
The court has been thinking about London for more than three months, so it appears to be a close question.
I have two cases currently pending before the 10th involving this exact issue - 10-16-00029-CR and 10-16-00231-CR. After reading Martinez, I actually checked to see if he had the same appellate counsel because the argument is identical (no). Both of mine are set on submission currently. Expect at least a couple more opinions on the issue this week.
This week I've gotten a Motion for Rehearing on both of my cases involving this issue where Appellant's counsel now (for the first time) argues that strict scrutiny should apply.
No PDR was filed in Martinez, 507 S.W.3d 914. The PDR filed in the Perez case (10-16-00029-CR), which was decided in accord with Martinez, was refused on May 3. The PDR in Ferguson (10-16-00231-CR), also decided in accord with Martinez, will likely suffer the same fate (as the arguments parrot those in Perez). Still no decision in London. In the meantime, Salinas has created its own set of costs (and budgeting) issues. Who would have dreamed that court cost assessment in a criminal case would become a monumental topic?
As anticipated, the PDR was denied in Ferguson today - PD-0175-17. However, I'm working on the very next brief which contains this issue right now. It may not die until the CCA takes it up.
The SCOTUS has stated, as valid, an assumption "that a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures" despite their indigency, since "state recoupment statutes may betoken legitimate state interests." James v. Strange, 407 U.S. 128, 141 (1972).
Mayer (309 S.W.3d 352) has now been modified by the Legislature in SB 527, adopting the principle that indigency at the time probation is ordered or sentence imposed should not be assumed to continue. If there is a change in the ability to pay while the defendant is confined or being supervised, the order or judgment may be modified. That seems in line with my argument about subpoena costs.
London's indigence proved not to be a determining factor. And the majority offered some stinging barbs for both his counsel and the dissenter.
The court found:
"London's appeal is premised on a conclusory assertion that it is 'unfair and unconstitutional' to assess court costs against an indigent defendant. That assertion is not supported by any legal analysis. Some courts of appeals have held that indigence does not preclude the recovery of court costs, so long as they are not required to be paid in advance. London's counsel did not disclose these contrary authorities, nor did counsel attempt to distinguish them or argue that they were wrongly decided.
"The dissent's abundant chaff fails to obscure the absence of wheat: a near complete failure to engage our legal reasoning.
"Only in a footnote does the dissent acknowledge that the confrontation of witnesses at trial was not actually contingent on the payment of the witness fee [but (perhaps) required after conviction]."
Without its saying so, I tend to believe the majority agreed that the mere specter of a $5 assessment (if your witness proves not to be material) carries no weight, whether or not you are poor. If the fee were a lot greater, there might be a difference; but I still think one's continued indigence protects against any true harm (forced payment).
