But these multi-million dollar legal bills per capital criminal raise a serious legal concern: Can America afford defendants' right to counsel? Justice At What Price?
The Sixth Amendment Right to Counsel

At a long-delayed preliminary hearing held last week, a federal judge ruled that Oklahoma City bombing conspirator Terry Nichols can be tried on state charges alleging 160 counts of first degree murder in connection with the 1995 bombing of the Murrah Federal Building. Nichols was already convicted in 1997 of federal conspiracy and involuntary manslaughter charges for the deaths of eight law enforcement officers in the bombing. He is serving a life prison sentence for his federal convictions because the jury deadlocked over whether to give him the death penalty, and the judge, to whom the sentencing fell, could impose no more than life without parole.

Despite Nichols' federal convictions and sentence, the push continues for state prosecution because some victims' families fear that, without a death penalty conviction, Nichols may eventually be successful in his federal appeals and regain his freedom. The U.S. Supreme Court has already turned down an appeal from Nichols arguing that a state trial for the 160 non-law officer deaths amounts to double jeopardy, and prosecutors in the state case are seeking the death penalty.

At the same time, other victims' families are questioning the high cost of trying Nichols for murder in state court at a time when Oklahoma is facing a $168 million budget shortfall. Housing Nichols in preparation for trial has been a financial drain considering the necessity of holding him in isolation on the 13th floor of the Oklahoma County Jail with five guards whose sole responsibility is to keep watch over him. Worse yet, it is reported that about $2.5 million has already been spent on Nichols' defense.

Nichols' preliminary hearing on the state murder charges was postponed seven times as the court sought to resolve legal disputes, including complaints by Nichols' court-appointed defense attorney Brian Hermanson that his legal bills were not being paid promptly. A legislative fund initially set up to pay for the trial expenses was cancelled in 1999. The defense is now paid through court fees financed through an Oklahoma County court fund, administered by the Oklahoma Supreme Court, and the prosecution, which had received about $500,000 from the legislative fund before it was cancelled, is now funding its case through the district attorney's regular operating funds.

Nichols' current $2.5 million legal defense costs pale in comparison to the nearly $100 million reported cost to the taxpayers for the exhaustive investigation, prosecution and defense of co-conspirator Timothy McVeigh, who was executed by the federal government in June 2001.

Although the taxpayer costs for McVeigh's case may be unusual, that is not so for $2.5 million already charged to taxpayers for Nichols' defense, with the total increasing daily. The Los Angeles Times, almost 10 years ago, reported that courtroom costs, prosecution and defense teams, appellate review and habeas corpus writs totaled approximately $3.5 to $4.5 million for each and every defendant sentenced to death.

But these multi-million dollar legal bills per capital criminal raise a serious legal concern: Can America afford defendants' right to counsel?

Ensuring that indigent criminal defendants receive competent counsel is one of the founding principles of our legal system and critical to a fair justice system. The U.S. Constitution affords the criminally accused many rights, among them the right to remain silent, the right to speak to an attorney before answering questions, the right to a jury trial, and the right to an appeal after a guilty verdict.

Last month marked the 40th anniversary of the single biggest case to change the U.S. criminal justice system -- Gideon v. Wainwright. Before the landmark ruling, indigent persons accused of crimes could be convicted and sent to prison without the benefit of representation by counsel. But in 1963 the U.S. Supreme Court changed all that by ruling that the Sixth and Fourteenth Amendments require the states to provide free legal representation to persons accused of crimes who cannot afford to pay for counsel.

Since Gideon, the fundamental right to counsel has been codified by statute or adopted by common law in the courts in every state. In most states, the rule applies broadly to all criminal prosecutions, while in others it is limited to more serious crimes where the accused faces a prison term.

More recently, the U.S. Supreme Court narrowed the application of the Sixth Amendment. In Alabama v. Shelton, the High Court reaffirmed the constitutional mandate that defense counsel must be appointed in any criminal prosecution, whether classified as petty, misdemeanor, or felony, which actually leads to imprisonment, even for a brief period. The Court then held that counsel need not be appointed when the defendant is fined for the crime, but not sentenced to jail.

Undoubtedly, defense of indigent persons does not come cheap. With limited financial support from the state, many cash-strapped counties have failed to provide decent legal representation to poor defendants, even in capital cases. In a Mississippi courtroom last week, oral arguments were heard in Quitman County's lawsuit against the state over who should pay for indigents' legal defense. Quitman County sued the state arguing that the state breached the constitutional right to counsel by not creating a statewide system of public defenders, choosing instead to rely upon private attorneys who are under contract to take on indigent cases part-time. Attorney Robert McDuff, in his opening statement for the County, cited evidence from studies of indigent cases in Quitman County showing that in each case pleas were entered the same day the defendant's attorney was appointed, proving that there was little investigation, consultation or negotiation by attorneys with their clients.

Many critics of this system contend that, under circumstances like those in Quitman County, the constitutional presumption of innocence until the government proves a defendant guilty has given way to the accused being ruled "innocent until proven without funds." They argue that changes must be made to help defense teams compete on a level playing field with often better-paid and equipped prosecutors.

But such a perceived inequity in legal teams is not the norm throughout America. In Utah, for example, where the drifters accused of abducting Elizabeth Smart recently received court-appointed counsel after claiming that they could not afford attorneys in their first court appearance, the Deseret News reported that "[a] fact of life in Utah's criminal justice system is that people who commit some of the most evil crimes end up getting some of the best defense attorneys in the state." Only about 40 lawyers make up Utah's prominent list of "Rule 8 qualified" attorneys who meet certain stringent criteria to defend death penalty cases. Under Utah's Rule 8, an indigent person facing a capital sentence can get two court-appointed attorneys. Their fees are paid from the Utah Indigent Capital Defense Fund, to which many counties contribute in order to avoid the prospect of raising taxes to pay for indigent defense costs.

With the volume of publicly-financed murder cases monopolizing local and national media coverage, judges, under scrutiny to keep court public defense costs down, have increased their oversight of appointed counsels' legal bills. For example, lawyers for sniper suspect John Allen Muhammad recently won permission from Prince William County Circuit Court Judge LeRoy F. Millette, Jr., to hire a three-member team to assess Muhammad's mental health, but were denied, at least temporarily, a request to engage two investigators, one of whom was to review Muhammad's background and personal history, the other who was to identify and contact witnesses who might testify at his trial. In denying the request, Judge Millette indicated that he needed more information about what the investigators will do and how much they will charge before he could approve their addition to the burgeoning defense team.

In addition to scrutinizing legal defense bills, judges should heighten their analysis under state statutory provisions in assessing the present ability of the defendant to pay all or a portion of the defense costs. Moreover, in some instances state law allows a judgment to be entered requiring the accused to repay the public cost of providing effective representation.

Such a statute exists in California where, at his arraignment on double murder charges, Scott Peterson told Superior Court Judge Nancy Ashley that he could not afford a lawyer. He was assigned to Stanislaus County Public Defender Tim Bazar, who assigned three of a staff of 23 attorneys to begin working on his defense. Attorney General Bill Lockyer was reported as saying he expected Stanislaus County to petition the state for financial aid to pay for the defense in this case, opening up the possibility that there could be more attorneys and/or experts getting involved.

One of the high-profile names being thrown around to join the defense team was Mark Geragos. Not known for sharing the spotlight, the same Mark Geragos recently replaced the Public Defender's Office as sole counsel for Peterson. News reports indicate that Peterson's family engaged Geragos to represent him, apparently using their own funds.

No doubt the change in counsel saves the Stanislaus County taxpayers thousands, if not millions, of dollars to defend Peterson. What is not known is how much, if anything, the family is being charged by Geragos. This is certainly a question that should be explored further by Judge Ashley and Mr. Bazar.

California law provides that, in any case in which the defendant hires counsel replacing a publicly provided attorney, the court shall make a determination of the defendant's ability to pay, provided that the applicable county has adopted a resolution by the board of supervisors to such effect. Assuming Stanislaus County has adopted such a resolution, the court should make a determination of Peterson's present ability to pay and a motion to recover defense costs, even just for the weeks of work by the public defender's office, should be filed. It's a pity if Stanislaus County has not adopted such a resolution and therefore cannot seek repayment. It's deplorable if it has and it fails to seek redress.

While it is undeniably unpalatable for the taxpayers to subsidize millions in defense costs for perpetrators of the most heinous crimes, we must acknowledge the legitimacy of Sixth Amendment protections, as well as accept a lesser of evils: undergoing the expense rather than seeing criminals freed on the basis of inadequate counsel, which only adds to anguish and expense. That said, taxpayers also have the right to insist that the right to counsel is not abused.

May 22, 2003
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