Capital case lawyer pay called low

Defense attorneys say death penalty should not apply

June 17, 2008|By Nicole Fuller | Nicole Fuller,SUN REPORTER

The lawyers representing a man accused of killing a correctional officer at the Maryland House of Correction in 2006 argued yesterday that their client should not face the death penalty because they are not being adequately compensated for their work on the case.

Gary E. Proctor and co-counsel Michael E. Lawlor entered a motion yesterday to preclude the death penalty as a sentencing option in the murder trial of Lee Edward Stephens, one of two inmates accused in the killing, because the fees they are being paid by the state to mount a defense are "manifestly unreasonable."

Because Stephens' co-defendant, Lamarr Harris, is being represented by defense attorneys who work for the county public defender's office, the office has hired private attorneys, Proctor and Lawlor, to represent Stephens to avoid any conflict. Stephens and Harris are accused of murdering David W. McGuinn, a correctional officer at the now-closed Jessup facility, July 25, 2006.

The panel attorneys are paid $50 an hour for their services, which - according to a brief filed on behalf of the death penalty dismissal motion - would allow them to dedicate 400 hours of work to the case, less than a third of what attorneys arguing federal capital cases receive, and is a violation of American Bar Association guidelines that state it is "improper" to employ flat fees, caps on compensation and lump-sum contracts in a death penalty case.

The Office of the Maryland Public Defender sets a $20,000 cap per attorney for earnings trying a case in which the death penalty is a sentencing option. According to a 2007 study cited by the defense attorneys, only Mississippi pays its attorneys at a lower rate.

In the brief, Proctor and Lawlor wrote that they face two choices: "represent Mr. Stephens to the best of their ability and face financial ruin, or neglect Mr. Stephens' case to pay the bill and book their client a bunk in death row."

Estimating a 10-week-long trial, the attorneys argued in their brief that they anticipate "working well in excess of 1,200 hours in this case - or three times the cap."

Anne Arundel Circuit Judge Paul A. Hackner, who heard the motion, is not expected to make a ruling until later this year.

Although the public defender's office has moved to increase the hourly rate for private attorneys in death penalty cases to $75 in fiscal 2006 and $125 in fiscal 2007, budget constraints have forced the office to continue paying those attorneys the $50 rate.

According to the motion, Proctor wrote two letters to Nancy Forster, public defender for the state, saying that the fees he will receive in the case are less than his office overhead. She did not reply.

Forster testified yesterday that she has the discretion to lift the cap, but that budget limitations restrict an across-the-board raising of rates. She added that she cannot raise the fee in this case or any other without setting off "a firestorm among all of my panel attorneys."

"I can't because I don't have it in the budget," Forster said, adding that only about 10 percent of the department's approximate $89 million budget is discretionary.

Prosecutors in the cases declined to comment, but in cross-examination they attempted to poke holes in the defense's theory that their pay would have an adverse affect on representation of the defendant.

Katy O'Donnell, chief of the capital defense division at the public defender's office, testified that there have been situations in the past where full payment was made when the cap was exceeded.

"In my experience, it has never been disapproved," O'Donnell said.

William Purpura, an experienced criminal defense attorney who has argued several capital cases, testified that he typically works 10- to 15-hour days, six days a week, on such cases and $50 an hour is "far too little."

"It completely shuts down your practice," Purpura said. "To be locked down for 10 weeks is extraordinary."

Lori James-Townes, a clinical social worker who is assigned to assess Stephens, testified that about two years ago she inquired about receiving a higher pay rate, but never received an answer.

"I found myself having to take more cases just to make a living, just to stay afloat," James-Townes said. "The quality of my work has changed because of the amount of cases I have to take."

She said she has worked at a rate of $125 an hour in Delaware and $100 in the District of Columbia.

"It's not enough for adequate representation for a defendant in a capital case," said Lawlor, after the hearing. "I'm going to represent him adequately, but I might have to miss my mortgage payment. ... Do I represent my client or do I eat?"

nicole.fuller@baltsun.com

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