Cost of proper defense challenges death penalty cases

The New York TimesNovember 4, 2007 

  • The American Bar Association issued guidelines in 2003 detailing the special skills defenders in death-penalty cases must have and the "extraordinary efforts" they must undertake because of the irreversible punishment. Capital defendants must have at least two lawyers, the guidelines say, and each phase of the appeals process should include an independent investigation.


— When Hilton M. Fuller Jr., a semi-retired judge of the silver-haired, Southern-gentleman variety, agreed to preside over the trial in a notorious courthouse shooting here, he took a job no one else wanted.

The legal community was still in shock over the death of a judge, a court reporter, a sheriff's deputy and a federal agent. But now, two years later, the truly thankless nature of Fuller's task has become evident.

The Legislature has threatened to impeach him. Columnists have taken him to task. On Friday, the district attorney sued him in state Supreme Court.

Even fellow judges have abandoned their usual reticence. On a recent afternoon, he received a copy of an e-mail message from a colleague calling him a "debacle," an "embarrassment" and a "fool." And the trial has yet to begin.

The anger directed at Fuller revolves around an issue more and more states are being forced to confront: the rising cost of an adequate defense in death penalty cases. Even as an examination of lethal injection by the Supreme Court has seemingly suspended the practice across the country, many experts predict that the cost issue will have far broader implications for the future of the death penalty.

States unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.

Trial delayed

For Brian Nichols, accused of killing four in the courthouse shooting in March 2005, the costs have already reached $1.2 million. That, together with legislative cuts, has left the state public defender system with no money. Until the bills are paid, the judge has delayed the trial, saying it is unconstitutional not to pay the defense and thus pointless to proceed. In turn, lawmakers have accused him of conspiring to end the death penalty in Georgia.

The state could avoid the multimillion-dollar trial by dropping the death penalty option. Nichols has offered to plead guilty in exchange for a sentence of life without parole, but the district attorney, Paul L. Howard Jr., has declined.

Fuller is not the only jurist to try to force states to pay for a defense that will pass muster with higher courts. Last month, the New Mexico Supreme Court suspended the prosecution of two prison inmates accused of killing a guard, saying their lawyers' pay was so low it was unlikely they could be effective. In Utah, a judge has asked whether he can force a lawyer to represent a convicted killer on appeal because, at fees amounting to less than $10 an hour, no one wants the job.

California, Arizona, Texas and Louisiana are having similar troubles.

"The right to counsel is as fundamental as it gets -- every other right depends on it," said Stephen B. Bright, a capital defense lawyer and president of the Southern Center for Human Rights, in Atlanta.

'O.J.-style defense'

State Sen. Preston W. Smith, the Republican chairman of the Judiciary Committee, has complained that Nichols is receiving a "high-end, O.J.-style defense" that most taxpayers could not afford. But while the price sounds high, especially for a man whose guilt no one doubts, the cost of even a minimal capital defense has been driven up by technology and the increasing sophistication of law enforcement.

Nichols faces a 54-count indictment, a team of five prosecutors and 400 potential prosecution witnesses. Prosecutors gave the defense team 32,000 pages of documents and 400 hours of taped telephone calls. The defense team is obligated to review all of the information and investigate each witness. To the irritation of lawmakers, Fuller has kept budget requests sealed to keep the defense strategy from becoming public.

Fuller is bound by recent Supreme Court decisions that have underscored the importance of the defense counsel's performance during the sentencing phase of the trial, when juries consider mitigating and aggravating factors in deciding whether to impose the death penalty. In a 2003 case, the court ordered a new sentencing hearing because defense lawyers failed to fully investigate their client's background and present evidence of severe childhood sexual and physical abuse.

The lead lawyer in the Nichols case, Henderson Hill, is billing $175 an hour instead of his usual $325. Another of his four lawyers has waived her fee. None has been paid since July.

Lawmakers say Fuller and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.

And, in fact, better-financed systems do reduce the number of capital cases -- coming closer, advocates say, to ensuring that the death penalty is reserved for the worst of the worst offenders. North Carolina, which instituted what is often pointed to as a model capital defense system in 2001, has gone from an average of 24 capital convictions a year to five.

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