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New Mexico court examines cost of counsel in death penalty cases

Via Capital Defense Weekly:

The New Mexico Supreme Court's recent opinion in State v. Robert Young, NO. 29,467 (N.M. 10/25/2007), provides an extensive examination of the cost of defense counsel in capital cases.

The issue presented is whether indigent defendants accused of capital crimes are unconstitutionally deprived of effective assistance of counsel when their counsel are inadequately compensated. The New Mexico court finds that under the facts of the case, counsel for the defendants are inadequately compensated, and as such defendants are deprived of the effective assistance of counsel. The Defendants asked the Court to consider three different remedies: (1) allow their attorneys to withdraw; (2) order the State to compensate counsel at a reasonable hourly rate; or (3) dismiss the death penalty.

According to the AP, Reis Lopez and Robert Young were charged with killing Ralph Garcia, who was a guard at a privately operated prison in Santa Rosa. Prosecutors brought charges against 15 inmates but sought the death penalty against three.

The attorney general's office and the state Public Defender Department had argued that enough money had been allocated for an adequate defense of the inmates. Fees for the defense lawyers were revised several times, according to the court, and contract amendments were offered that provided for a total of $46,500 for each main attorney through trial and $23,000 for each second-chair attorney. The defense lawyers did not sign the contract amendments, however. In 2005, the Legislature provided an additional $100,000 for each of the three death penalty defense teams. An extra $200,000 per defense team had been requested from the Legislature, but lawmakers trimmed the amount. About $870,000 also had been provided by lawmakers but defense lawyers say that should go only to pay for expert witnesses.

In addressing the merits the Court in the case.

As a general rule, the gravity of the death penalty and its requisite heightened scrutiny require a significantly greater degree of skill and experience on the part of defense counsel than is required in a noncapital case. See ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 1.1, History of Guideline (rev. ed. 2003), in 31 Hofstra L. Rev. 913, 921 (2004) [hereinafter ABA Guidelines]. Capital defense teams must spend more time preparing for and trying a capital case than for non-capital cases. See State Bar of N.M., Task Force to Study the Administration of the Death Penalty in New Mexico, Final Report 6 (2003) [hereinafter New Mexico Task Force Final Report] (discussing a study of capital defense in federal courts and noting the "unique strains" placed on capital defense counsel, such as spending more time with a capital client, "unique and intensive training," and lengthy, complex jury selection). Therefore, it is indisputable that the prosecution and defense of capital murder cases are substantially more expensive than in non-capital cases.

Yet the financial burden on attorneys who contract to defend capital cases is not measured simply by the amount of time devoted to defending such cases. "[T]he demands of handling a death penalty case frequently preclude acceptance of other employment while the case is being litigated." See id. Unlike the public defenders employed by the PD, capital defense attorneys must pay overhead. Finally, because representation in capital cases requires specialized skills, intensive training relating to substantive areas of mitigation, forensic science, and practical instruction in advocacy skills is required.

Because of the extraordinary demands on capital defense attorneys, ABA Guidelines, Guideline 8.1 Commentary, in 31 Hofstra L. Rev. at 979, the American Bar Association has condemned flat fees, caps on compensation, and lump-sum contracts in death penalty cases. Id., Guideline 9.1(B)(1), in 31 Hofstra L. Rev. at 981. Rather than a flat fee or a capped rate, the ABA Guidelines stress that "[c]ounsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation." Id., Guideline 9.1(B), in 31 Hofstra L. Rev. at 981.

The Court's conclusion:

Defense counsels' compensation is inadequate under the facts of this case, violating defendants' Sixth Amendment right to effective assistance of counsel. Prosecution of the death penalty is stayed unless the State makes adequate funds available for the defense. We have set the hourly rate and maximum compensation based on the unique circumstances of this case. In doing so, we make no determination that similar fees or rates are constitutionally required in other cases.

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