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June 17, 2008

Interesting line of attack against the death penalty

This new Baltimore Sun article, headlined "Capital case lawyer pay called low: Defense attorneys say death penalty should not apply," reports on an interesting attack on the application of the death penalty in Maryland.  Here is how the article starts:

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."

June 17, 2008 at 07:46 AM | Permalink


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Though the DP might effectively be off the table in MD, anyway.

Posted by: S.cotus | Jun 17, 2008 9:20:07 AM

from the court of appeals decision affirming the trial judge's denial of this motion:

"The trial court was correct to deny the defense motion to preclude the death penalty on the ground that appointed counsel was not adequately compensated for their work on the capital case. The Constitution does not entitle a defendant to a hard working lawyer paid a reasonable fee for his time and effort. We recognize capital cases are the most highly contested cases and take a lot of time and energy on the part of all lawyers involved. Capital defendants are not entitled to reasonably compensated counsel, nor are they entitled to counsel who lacks an incentive to finish the case as soon as possible. All the Constitution requires is that capital counsel (1) appears at trial; (2) remains awake during the significant portions of the trial; and (3) is breathing. The defendant has not shown the fees paid to his appointed counsel influenced these factors, and assuming, arguendo, he could make such a showing, it would be harmless error because there is overwhelming evidence of the defendant's guilt. The conviction and sentence of death is therefore AFFIRMED."

Posted by: bruce | Jun 17, 2008 9:53:34 AM

Seems unconstitutional that the state will pay the prosecutor a hefty salary (at least comparitavely) in a case like this, but not the defense. Could be seen as tipping the scales of justice. While the state doesn't "entitle" the defendant to an adequately compensated attorney, I do think the defendant is entitled to a "fair" trial in every sense of the word.

Posted by: Joe | Jun 17, 2008 11:10:16 AM

Anyone know what the assistant prosecutors working on this case earn? $50 an hour for a government employee would work out to an annual salary of $104,000. Are they making that much?

Posted by: NewFedClerk | Jun 17, 2008 12:39:42 PM

MD States’s Attorneys are not paid a “hefty” salary. (I don’t know who is trying to case, so I can’t work backwards and figure out their salary, and I have too much taste to do that.) But that isn’t the issue.

As a practical matter, the DP is off the table in MD. The MD Court of Appeals (MD’s highest court) held that the state had not complied with its little APA in selecting the killing method. So far, as far as I can remember, the state hasn’t moved any faster towards re-instituting the killing process.

Secondly, As a general matter, the difference between what government lawyers get and what private counsel are paid is like apples and oranges. If someone must be appointed to take a case, it is as if the state is simply hiring a private attorney (of a certain level of skill and expertise) to do some work for it. This might cost a lot, and would definitely cost more per hour than what the state pays one of its in-house lawyers.

NewFedClerk, About $80k. See http://www.aacounty.org/Personnel/CCPlan/SAPaySchedule.cfm

However, it is silly to compare rates payable to private counsel to the hourly salaries of government attorneys. Government attorneys don’t pay their own overhead and they are paid even for time they are not working on “billable” cases. So, when a court appoints someone, it is going out into the “open” market rather than comparing the salaries to the government’s payscale.

Posted by: S.cotus | Jun 17, 2008 12:58:39 PM

This is the most ingenious pitch for a raise I've seen for a quite some time.

It reminds me of the old, somewhat sick joke that "If you don't give me ___ (fill in the blank), I'll kill this puppy."

Posted by: Bill Otis | Jun 17, 2008 4:53:18 PM

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