Sunday, December 12, 2004
Lawyers decry pay-cut ruling in capital case
The issue of federal judges reducing requested payment to court-appointed attorneys has bubbled up in a few cases around Virginia. Payment is up to the judge's discretion.
Walter LeFight "Pete" Church is a free man today because of the efforts of his defense attorneys, federal Judge James Jones wrote recently in a legal opinion.
The West Virginia man was one of three defendants who have faced the death penalty in federal court in connection with the slayings of three members of a Tazewell County family in 1989.
After a first trial that ended in a hung jury and a second trial, Church was acquitted along with Charles Wesley Gilmore, the former mayor of Pocahontas, where Robert and Una Mae Davis and her son, Bobby Hopewell Jr., were slain. A third defendant, Sheri Howell Nichols, was also acquitted of perjury charges.
But in an unusual ruling, Jones decided to approve a lesser amount of attorneys' fees the court will pay to Radford attorneys Jimmy Turk and Beverly Davis, whom Jones appointed to represent Church at both his trials.
The issue of federal judges reducing requested payment to court-appointed attorneys has bubbled up in a few cases around Virginia, according to some attorneys. Payment of court-appointed attorneys is up to the discretion of the judge.
Turk said he doesn't plan to change how he defends capital defendants as a result of the ruling. But he said he does wonder if he should be concerned going forward if what he is doing to defend a client is excessive or unreasonable.
"I kind of really just don't understand why," Turk said of Jones' decision. Jones did not rule that Turk's and Davis' work was excessive or unreasonable, just too expensive.
Money for the payment of court-appointed defense attorneys comes from the judiciary's budget. Under federal law, attorneys in federal capital cases can get paid up to $125 an hour. Court-appointed defense attorneys are required to file anticipated budgets in federal capital cases.
The judiciary has experienced serious budgetary constraints over the past few years. But Jones declined to comment on whether his decision related to those circumstances.
Jones chose to reduce the amount Turk and Davis requested in their final vouchers submitted to the court by 10 percent, according to the opinion. He ruled that instead of the $1.89 million Turk and Davis have requested in total for their fees, experts, investigation, office and research costs while representing Church over the past 3 1/2 years at two trials, he authorized payment of $1.74 million.
Turk, who said this was the first time he had a fee cut in the 15 or 16 capital cases he has worked on in the 20 years he has practiced law, also argued that nobody is telling prosecutors and investigators, "wait, this is costing too much."
"And that's not fair," Turk said.
Jones based his decision on the fact that the attorneys' defense of Church cost from two and a half to three times more than what it cost to defend the two other defendants who faced federal capital murder charges in connection with the slayings, according to the opinion. He also considered the original amounts that Turk and Davis budgeted for Church's defense, and his own observation of the costs of capital cases, according to the opinion.
Jones has already authorized the payment of more than $1.43 million in the Church case, for attorneys' fees to Turk and Davis, additional expenses, paralegal, expert and investigative costs.
Not including the more than $450,000 worth of final vouchers that Jones considered as part of the opinion, the total defense costs for all of the prosecutions that have arisen out of the Pocahontas slayings is almost $2.7 million.
(One of the four defendants who was charged federally in connection with the slayings, Samuel Stephen Ealy, was convicted.)
David Bruck, director of the Virginia Capital Case Clearinghouse at Washington and Lee University School of Law, said there might be one or two other federal capital cases at the trial level in which judges have not authorized the compensation that court-appointed defense attorneys have requested, but that he was not aware of any.
Federal capital cases are very expensive and extremely difficult to defend, Bruck said. Defense costs in federal capital cases have risen since 1990 from about $269,000 to an average of $500,000 in 2003, with the defenses in some cases totaling more than $1 million, according to Jones' opinion.
By far, the most expensive defense of a federal capital defendant was for Oklahoma City bomber Timothy McVeigh, which Jones also referenced in his opinion. The cost of defending McVeigh totaled more than $15 million, The Associated Press has reported.
But Bruck pointed out that the prosecution costs in that case far exceeded the defense costs in the McVeigh case. The Department of Justice spent $82.5 million on the investigation and prosecution of McVeigh, according to The Associated Press.
Bruck also argued that Attorney General John Ashcroft has run up defense costs by aggressively seeking the death penalty, even overriding the recommendations of local prosecutors in some cases.
That leaves the defense community with no choice but to defend clients in those cases, Bruck argued.
The prosecution costs of a federal case are provided for by the executive branch in the salaries of prosecutors and investigators. Money to pay any experts who may testify in a case would also come out of executive branch funding. Asked whether the prosecution costs had been tabulated in the Pocahontas slayings, a staffer at the U.S. Attorney's Office said the office does not break out costs by individual criminal case.
Turk acknowledges that defending a capital case can be a very expensive process.
But he also pointed to the unusual circumstances of the case, such as that Church's first trial ended in a mistrial. The second trial involved two more defendants and a lot more witnesses that the defense attorneys had to investigate, including an alleged eyewitness to the slaying who came forward just months before the second trial. A U.S. Supreme Court ruling that came down during the trial of Church, Nichols and Gilmore also added complications to the case.
Turk and other attorneys who defend capital defendants also said the cases take an enormous amount of time and resources and take a toll on attorneys' personal and professional lives. He estimated that he spent 17 weeks away from his solo practice in preparing for and working at Church's trial. Jones' opinion showed that defense attorneys spent thousands of hours on the case.
Turk also said that he and Davis were never told there were any limitations in the case or that the case was costing too much, and that Jones approved all payments up until the trial time. They did go over the budgets they originally submitted, but Jones also permitted the revision of the budgets for unexpected costs.
And then there was the outcome of the case, in which Jones characterized the performance of Church's attorneys as outstanding.
"I felt like we had to do everything possible - and did everything possible - to prove his innocence," Turk said.
Roanoke attorney Tony Anderson, who came into the case later than Turk and Davis because his client, Gilmore, was indicted after Church's first trial, said that he was able to depend on some work Turk and Davis had already done preparing for trial, so his costs were lower than they might have been.
The question of payment has also arisen in another federal capital murder case, according to Charlottesville attorney Steven Rosenfield.
Rosenfield defended Shawn Arnette Breeden, who was charged along with three other defendants in a drug-related slaying.
Rosenfield said there's no way to know when defense attorneys establish a budget in a federal capital case what difficulties might come up and what experts they might need.
At the Breeden trial, for example, defense attorneys had brought in experts from North Carolina and California to testify. But because of a change in how the trial unfolded, defense attorneys had to send the experts home, then bring them in again, Rosenfield said.
Those costs became part of the defense expenditures in the case. Prosecutors also have to reschedule witnesses sometimes, depending on how trials unfold.
Rosenfield said Breeden sent a letter to the court before Ashcroft authorized the seeking of the death penalty in the case that said Breeden would plead guilty with the understanding that he would be sentenced to life without parole.
That letter was never addressed by the court, Rosenfield said. The case went to trial for weeks. Breeden was ultimately convicted in connection with the slaying, then sentenced to life without parole.
The final vouchers in that case are still under review for reimbursement, Rosenfield said. Though Rosenfield and the other attorneys representing Breeden did not exceed their budget, their fees have still been reduced because the judges in the case found that the case was getting too expensive, Rosenfield said.
In the meantime, Rosenfield said he basically shut down his practice for six months to defend Breeden. In working on capital cases, he takes an hourly pay cut of 50 percent from his normal rate of $250 per hour in a felony case, he said.
"Why are defense attorneys required to sacrifice in capital cases when judges' salaries are not reduced, prosecutors' salaries are not reduced, and court personnel's salaries are not reduced because of their involvement in a capital case?" Rosenfield argued.