On the taxpayer’s tab: Indicted Boston City Councilor assigned a public defender

Boston City Councilor Tania Fernandes Anderson, facing a slew of felony level charges, has turned to the Federal Defender Program for her legal counsel, and the decision has some scratching their heads.

An “order appointing Federal Defender Program” was issued on Dec. 6, which allows Fernandes Anderson access to one of the thousands of attorneys who work for a Federal Defender Organization or participate as a panel attorney under the Criminal Justice Act. That means that she joins most federal defendants in seeking public support for legal representation, according to information shared by a spokesperson for the Administrative Office of the United States Courts, which administers the program.

“Federal defender organizations, together with the more than 12,000 private ‘panel attorneys’ who accept CJA assignments annually, represent the vast majority of individuals who are prosecuted in our nation’s federal courts,” the agency said on its website.

Panel attorneys, according to the courts, “are paid an hourly rate of $172 in non-capital cases, and, in capital cases, a maximum hourly rate of $220.”

The indicted city councilor — who has denied all charges — is currently paid $115,000 per year as an elected official.

According to Herald columnist and attorney Wendy Murphy, income isn’t the only consideration when the courts are asked to provide legal representation, a defendant’s assets and debts come into consideration, as well as their “ability to pay.”

“Salary isn’t the only question,” Murphy said.

Still, it sticks out to Murphy that Fernandes Anderson, a frequent advocate for those in need of financial support, would take away scarce resources from those who might genuinely need them.

“It’s more than ironic that a woman who said she cared about the struggles of her constituents of limited means is taking money from the public coffers — money that could otherwise be used to help the very people she claimed to care about,” Murphy said. “With such a good salary she should have to at least contribute.”

However, according to court filings, Fernandes Anderson may well be a “person in need” herself. Included in the indictment detailing her alleged crimes, prosecutors noted that at the time she was “facing personal financial difficulty.”

“Which included missing monthly rent and car payments, an impending $5,000 civil liability from the Ethics Commission, and incurring bank overdraft fees, which resulted from Fernandes Anderson maintaining low daily bank balances,” they wrote.

Determining who is eligible for public counsel is a “judicial function,” according to the courts, and counsel must be appointed if the person seeking it is “financially unable to obtain counsel,” which they demonstrate to the court through filing a financial affidavit.

“In determining whether a person is ‘financially unable to obtain counsel,’ consideration should be given to the cost of providing the person and his or her dependents with the necessities of life, the cost of securing pretrial release, asset encumbrance, and the likely cost of retained counsel,” the court writes in their instructions for filing the affidavit.

The wealth of a person’s family — unless they indicate to the court they intend to intervene — is not factored into whether they qualify for a court appointed attorney, and when it doubt, the court is supposed to err on the side of the defendant.

“Any doubts about a person’s eligibility should be resolved in the person’s favor; erroneous determinations of eligibility may be corrected at a later time,” the affidavit instructions read, in part.

A study released in 2017 showed that “fully 90 percent of defendants in federal court cannot afford to hire their own attorney.”

According to the Sixth Amendment to the U.S. Constitution, criminal defendants are guaranteed the right “to have the Assistance of Counsel for his defense.”

Fernandes Anderson, 45, was indicted on five counts of aiding and abetting wire fraud and one count of aiding and abetting theft concerning a program receiving federal funds, according to charging documents.

She was arraigned at the Boston federal courthouse last Friday afternoon, when she pleaded “not guilty” and was released on conditions.

A second-term city councilor whose district includes Roxbury, Dorchester, Fenway and part of the South End, Fernandes Anderson is alleged to have pocketed $7,000 from a $13,000 bonus she doled out to a relative she had hired in late 2022 as a paid member of her Council staff, according to the indictment.

The charges of wire fraud each carry a sentence of up to 20 years in prison, three years of supervised release, and a fine of up to $250,000. The charge of theft concerning programs carries a prison sentence of up to 10 years, three years of supervised release, and a fine of up to $250,000.