Guidelines set by the Criminal Justice Act of 1964 have led to mixed, seemingly contradictory arrangements for legal representation for the four defendants in the Walker spy case, including two who appear to have substantial financial assets.
American taxpayers are footing the legal costs of three of the men under a law designed to guarantee a lawyer for federal criminal defendants who are deemed unable to pay.
The law, usually seen as aiding indigents, provides court-appointed or public defender lawyers for any federal defendant who is "financially unable to obtain adequate representation" -- a wider range than poor people alone.
"The law doesn't define 'financially unable,' " said Arthur Ruthenbeck, assistant chief of the Criminal Justice Act office in the U.S. court system. "There's quite a bit of discretion left to the judges, based on the extent and complexity of the case."
In the Walker case, alleged ringleader John A. Walker Jr. is being represented by a federal public defender in Baltimore. His son, Michael, has been assigned a court-appointed attorney, apparently to avoid any conflict of interest within the public defender office.
In Norfolk, John Walker's brother, Arthur, a retired Navy officer, is being defended by two private lawyers assigned, and paid, by the court. Only the fourth defendant, Jerry A. Whitworth, has hired a lawyer in San Francisco.
Although John and Arthur Walker both have assets such as homes and cars, as well as income from salaries and military pensions, Ruthenbeck said judges weigh defendants' net financial resources in deciding their eligibility for a publicly financed defense.
Debts and, in John Walker's case, sizable IRS liens are factors in a judge's estimate of a defendant's ability to meet the financial burden of a lengthy, costly criminal case such as fighting espionage charges.
Whether the Walker defendants received cash from the Soviets, as the FBI has alleged, remains for a jury to decide.
"If there are any doubts about eligibility," Ruthenbeck said, "the court usually resolves those in favor of appointment of counsel."
If a defendant is later found able to hire a lawyer, the act provides for an "erroneous determination," Ruthenbeck said, and public assistance is withdrawn. "The court makes a determination based on information available at that time."
The law also permits a finding of partial eligibility. In major white-collar fraud cases, defense costs might reach $30,000 to $40,000, according to Ruthenbeck. "If the defendant has $20,000, he is not indigent by any standard," he said. "The court might find him partially eligible and order him to pay the $20,000 to the court" toward legal costs.
Arthur Walker has been ordered to pay $200 a month to the court to help defray the cost of his defense.
The system of public representation is set by judges in each federal district around the country, based in part on geographical distribution of the caseload. Baltimore has a federal public defender office, while eastern Virginia relies on private lawyers appointed and paid by the court.