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What happens when government gets involved in financing an indigent defendant's defense costs?

Posted by Dmitry Gorin | Oct 28, 2007 | 0 Comments

In Georgia, a defendant is charged with committing a heinous crime, first rape, then escaping from the courthouse killing a judge and three others. He is facing the death penaly. But because he is indigent, the state is paying for his defense lawyers fees, as is the case in all other parts of the country. Lawmakers are calling for impeachment of the judge who has approved the indigent defendant's lawyers fees.The trial judge on the death penalty matter is subject to the ire of state lawmakers because he has approved over $1.2 in legal fees to the defense lawyers preparing for trial. No one has claimed that the lawyers have padded their bills, or been unreasonable in trial preparation work in any way. Rather, the lawmakers feel that the judge should rein in the criminal defense lawyers. Critics say DeKalb County Senior Judge Hilton Fuller has mismanaged the high-profile death penalty case. In the middle of jury selection, the case has come to a halt because of disputes about those payments.The lawmakers have said: "How many more millions will be spent giving Brian Nichols a defense that no one, including the taxpayers, could afford for themselves?" said Republican House Speaker Glenn Richardson in a statement. "There are serious questions about the poor handling of public funds that need to be addressed. The law provides the House that authority, and we intend to investigate the matter." Richardson said he planned to appoint a special committee, headed by attorney and Republican state House Majority Whip Barry A. Fleming, to investigate Fuller's handling of the trial and whether there was an "abuse of the system."This simply never happens. And it shows the power a government can have over a judge, if it does not like the judge's conduct. The judge appears to have done what any judge would have done in his situation -- approved reasonable legal fees for the defense. The fees are high, but should not an indigent defendant have a thorough defense, especially if he is facing the possibility of losing his life.After Nichols arrest following the escape and homicides, the Georgia Public Defender Standards Council assigned a team of salaried defense lawyers to the case, but prosecutors raised issues about the standing of one of the attorneys with the State Bar of Georgia, and moved to disqualify the entire public defender's program from the case. The council withdrew the original lawyers, and in an abundance of caution, assembled a new team that included three outside lawyers who billed by the hour. Fuller approved those rates, which are as high as $175 per hour, in July 2005. By last August, according to court documents, they had billed for more than $700,000 in attorneys fees and $200,000 in expert fees.Importantly, the prosecutors office also has a number of lawyers handling the case. Fulton County Dist. Atty. Paul Howard's office has assigned five assistant prosecutors to the Nichols case. They filed a 54-count indictment and submitted the names of 300 potential witnesses. Defense attorneys argue that they need a budget that allows them to mount a sufficiently vigorous defense.The case is taking a toll on Georgia's public defender system. The Legislature cut the system's budget for the public defender's council about 20% this year. It owes the three outside attorneys more than $160,000, and has declined to pay, despite an order from Judge Fuller. On Oct. 17, Fuller halted the case after two days of jury selection after the defense attorneys asked that the funding issues be resolved. In other words, the defense lawyers want to make sure that they will paid for their months of work, just as the prosecutors.Importantly, the U.S. Constitution guarantees the right to effective counsel. So despite the pain of taxpayers having to pay for an attorney, we are ensuring that everyone who stands accused exercises to right to an attorney in court. Tagged as: counterfeit goods pc 350


David Carde on December 7, 2007 at 4:47 p.m. wrote: I don't understand the thinking behind Judge Fuller's decisions in this case whatsoever. When the prosecution moved to disqualify the public defenders program in its entirety from the case, I don't understand why this motion was granted. Why wasn't the one 'iffy' public defender removed and another public defender substituted? It seems that this was an example of throwing the baby out with the bath water. I assume that the 'House' referred to in the blog is at the level of the state government. And I'm not clear if the writer of the blog is claiming that an investigation into Judge Fuller's authorizing such high fees will never happen or if this kind of investigation, in general, never comes to pass. Regardless of the above, it makes sense to me that an investigation of a judge's ruling(s) by the legislature would be appropriate at times. It seems to me that this would be an example of how checks and balances operate both at the state and national level in this country. After all, this kind of checking goes in the opposite direction: judges rule on the constitutionality of laws passed by legislatures. And just as the Supreme Court uses discretion in terms of deciding which cases to rule on, I would assume that the state legislature would exercise caution before diving in to 'second guess' a judge. Yes, all defendants are constitutionally entitled to effective counsel. However, the decisions made in this case do not seem to be grounded in reasonableness. It seems that there might have been options aside from authorizing a million dollar defense. Kelsey Kernstine on November 27, 2007 at 1:31 p.m. wrote: The 1.2 million dollars in legal fees is absolutely outrageous. However, I do not think that the judge should be impeached or punished for approving the defendant Jade Machado on November 14, 2007 at 9:32 p.m. wrote: I believe that the state of the United States jury trial system forced the judge to approve the 1.2 million dollar defense lawyer legal fee. The Constitution gives everyone accused of a crime the right to counsel, even if they cannot afford one. If the judge had decided to rule against the defendant by refusing to pay the legal fees and assigning him a third set of lawyers, the verdict of the case would have likely been overturned in the court of appeals. The United States jury trial system is very concerned with following proper procedures. Refusing counsel, who actively persued the evidence and formed a strong case, is a clear violation of the defendant's rights. Regardless of the case's strength of evidence, the jury's desicion would likely be overturned. The judge probably forsaw this outcome and decided to pay the excessive legal fees, in hopes that a guilty verdict would not be overturned by a violation of procedure. Steven Gibson on November 12, 2007 at 5:30 p.m. wrote: The defendant was charged with rape, then escaping from the courthouse killing a judge and three others. first off, as Pizzi repeatedly states in his book, judges as interpreters of the law must be able to read through legislature which cannot account for every circumstance and every application. With the amount of leeway given to judges in their courtrooms, one would think that a judge would not so strictly and blindly follow the law as to ignore the specifics of this case and treat it as one where the defendant were actually a victim of an overreaching judicial arm or corrupt police work. The defendant even killed a fellow judge, and yet that did not prevent the Georgia judge from dulling out 1.2 billion dollars for his defense, a right most defendants that are accused of crimes even near this ever dream of. The least that the judge could do is hold a preliminary hearing and look at the amount of evidence piled up against the defendant versus the strength of the defenses case before deciding to provide this outrageous allowance. Why not provide public defenders who would come at much cheaper? Another issue is the fact that the court system Sam Rosenblum on November 12, 2007 at 12:47 a.m. wrote: First of all, let me just note that the definition of indigence is: ?a level of poverty in which real hardship and deprivation are suffered and comforts of life are wholly lacking? (taken from Merriam-Webster online dictionary). In essence, what I am attempting to point out here is the fact that the defendant is, in no way, shape, or form, in need of special treatment or defense. He is poor, not mentally retarded. Why does this defendant deserve lawyers that charge upwards of $200 an hour, when everyone else in his situation is appointed a public defender working for a mere fraction of this rate? Attempting to take a neutral stance on the situation (while sounding cool by quoting Prof. Gorin) I will say this: I was not there for the rape or the multiple homicides, I am not a witness, and the defendant may actually be the victim of a top-secret government conspiracy. That being said, I?m pretty sure this guy is guilty as charged. Even so, as an American citizen, he is entitled to a court appointed lawyer due to the fact that he is facing multiple felonies and can not afford a lawyer on his own. So, the facts so far: 1) he may or may not be guilty on all or any of the 54 counts he is being charged with; 2) he is entitled to representation by a certified defense lawyer; 3) he has no special needs, whether psychological or otherwise, 4) his legal fees have already amounted to a higher sum than it would cost to put the Brady Bunch through four years of school at USC. As far as the judge?s decision to approve the legal fees, I believe it is more than a bit over-board. The defendant should have been provided one public defender, not a team of Johnny Cochrans. Whether or not the judge should be impeached is a much deeper question that would definitely take more consideration than this one case; I just wonder how the judge would feel about being asked to pay $175 per hour while I was carefully considering his impeachment. Kate Monson on November 7, 2007 at 1:56 p.m. wrote: I don?t think anyone could disagree with the trial judge giving the indigent a lawyer because it is written in the Constitution that everyone has the right to an effective counsel. However, I don?t see why approving over $1.2 million in legal fees is necessary for an ?effective? job to be done. As some opponents said, taxpayers are spending more on this man?s defense than on what they could spend on their own. This, I don?t believe is fair. The job of the judge is to approve reasonable fees that would provide an effective council for the defense. But what constitutes ?reasonable? and ?effective? is not so clear and could be interpreted in many different ways. Having more lawyers and spending more money on them doesn?t necessarily equal a more effective council and certainly isn?t always reasonable. Brian Strand on November 6, 2007 at 6:03 a.m. wrote: I agree with Larina. The $1.2 million dollars is a ludicrous amount for a trial (I wonder how much Kobe, Michael Jackson, OJ paid their lawyers...) If the defendant is truly indigent (how is this determined?) then I believe his counsel should have taken the case pro bono, after the prosecution eliminated the public defender's program. Unfortunately, they took the case with the understanding from Judge Fuller that they would be paid in full for their services. This warrants their pay, but must call to question Fuller's thought process. He should be reprimanded (in the least) and although this is a rare case, there should be a standard to how much a defendent can receive from the government, thus taxpayers, for an 'adequate' defense. In a side note, I wonder what problem the prosecution had with the public defense team. I know this is wrong to say, but if one (or more) of the council was at odds with the State Bar of Georgia, then wouldn't the prosecution have been at an advantage? Plus they would be saving the taxpayers money by saving the defense from having to hire private practice attorneys. Larina Mortazavi on October 29, 2007 at 6:34 p.m. wrote: There is a constitutional right to effective counsel if one's life or liberty is at stake, and since this is a death penalty case, the defendant certainly has a right to counsel. Regardless, a $1.2 million for a legal defense seems excessive. The average American would certainly not be able to afford such legal counsel. In fact, most Americans could not afford anything near that amount. This defendant, however, happens to be indigent and so he gets the benefit of a $1.2 million dollar defense team, which there is no way most defendants in his position would ever have. As much as the fairness in our adversary court system requires that both sides be represented by adequate counsel, it does not require that both sides be represented by the best (most expensive) counsel. 'Adequate' implies just that - adequacy, and not necessarily greatness. Why does this indigent defendant need lawyers that bill $175 an hour when he could have retained the public defenders office? There is no logical explanation for needing such expensive lawyers. Should it really cost the state $1.2 million to protect the rights of a rapist-murderer? It is ingrained in our justice system that every person, regardless of the crimes they have committed or allegedly committed, has constitutional rights. No one loses those rights once they commit a crime, no matter how heinous. I disagree, however, that there is any right to a $1.2 million defense, especially when it comes from the taxpayers. I am curious to see the review of the judge's role in this trial, and whether any misconduct is found. I find it unsettling that a judge's work can be second-guessed; however, this is clearly an extreme case and perhaps governmental review is necessary to prevent such cases of mishandling.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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