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Convicted mom granted indigence hearing

Utah Supreme Court says she was denied state-funded experts

SHARE Convicted mom granted indigence hearing

Becky Burns was convicted of starving and dehydrating her infant son eight years ago. She did not have the ability to call expert witnesses in her behalf.

But now she may get a second chance to do so.

In a unanimous 13-page decision issued Friday, the Utah Supreme Court ruled that 3rd District Judge Frank G. Noel erred in denying Burns state-funds for expert witnesses needed by her defense without deciding whether she was indigent. Noel told Burns that she could not have the attorney of her choice, who was paid by her father, as well as qualify for public assistance. The court's ruling said that decision is not supported by state law.

The state's highest court said instead that defendants in criminal cases may receive financial assistance regardless of who is paying for their attorney, as long as they are declared indigent.

"It's a shift from what the practice has been," said Joan Watt, chief appellate attorney for the state's Legal Defenders Association. "For the most part the practice has been, you either go with the legal defenders and the resources available here or you retain private counsel" and assume all the expenses of the case.

"The Supreme Court has interpreted the law as saying that you don't have to take it as a package deal," said Utah Attorney General spokeswoman Tracey Tabet. "Clearly, we are disappointed."

Nevertheless, "if the way (the law) was interpreted doesn't reflect the intent of the Utah Legislature, (legislators) may want to consider amending it," Tabet added.

What effect exactly the decision will have for the state's public defenders or prosecutors remains to be seen, but it definitely provides "a new approach" for defendants to get expert witnesses, Watt said. "The reality is that people will still have to be found indigent in order to qualify" for public assistance, she said.

A 3rd District jury convicted Burns and her husband, Richard Burns, in 1992 of murder, a first-degree felony, in the death of their 6-month-old son, Shawn. Authorities determined the baby, who suffered from Down syndrome and congenital heart disease, among numerous other health problems, was starved and dehydrated to death.

The Burnses argued the baby's conditions, compounded by side effects from treatment drugs, caused his death. The couple's attorney asked Noel to appoint the couple a state-funded expert witness in order to properly defend them. But Noel denied the motion, ruling that the Burnses could either retain the attorney paid by Becky's father, or apply for indigence, have a public defender appointed, and thereby qualify for expert witnesses funds.

"The court did not deny funds for an expert witness outright, but made it clear that if the Burnses were indigent, they could get state-funded expert assistance only if they were represented by (a public defender)," the opinion states. However, "there is nothing in (state law or policy) that conditions availability of (state funds) on acceptance of (a public defender). Instead . . . the only deciding factors of eligibility for this type of assistance are that the defendant in a criminal case be indigent and that (the experts) be necessary to a complete defense."

Because the prosecution acknowledged that the case relied substantially on expert medical testimony, Becky Burns' lack of a medical expert prevented defense counsel from effectively representing her, the opinion states.

"We hold that Burns was entitled to a hearing for a determination of whether she was indigent regardless of who was paying her attorney fees; she was deprived of that right."

In 1992, the determination of indigence was left entirely to the discretion of the trial judge, but the Legislature has since defined standards upon which a person may be deemed indigent.

Some courts have also been more lenient in the assignment of defense counsel for indigent individuals. For instance, in the case of Paul Allen, who was convicted earlier this year of hiring two men to kill his wife, Jill Allen, a 2nd District judge allowed him to retain the attorney of his choice, Ron Yengich, at the expense of the state after declaring him indigent.

E-mail: hans@desnews.com