Public defenders decry fees

By Carol Sowers
©The Arizona Republic
Jan. 12, 2001

Fed up with what they consider abysmal pay for defending low-income clients, Valley attorneys are rallying behind a colleague who says he will go to jail before losing money on a death-penalty case. The lawyers crowded into a Maricopa County Superior Court room this week to offer moral support for Mike Terribile, a defense attorney who is asking for more money to defend convicted murderer Richard Rivas in the death-penalty phase of sentencing. If Judge Kenneth Fields refuses, Terribile says he's off the case. Terribile has become the lightning rod for the issue of how private lawyers are paid by counties to defend low-income and indigent clients. The case underscores a debate over whether contract lawyers are paid enough to mount a thorough defense for such clients, particularly those facing execution, Mark Harrison says. He is one of the five attorneys representing Terribile for free. Other attorneys say that they often spend hundreds of hours on cases beyond what their contract covers. Stephen Kunkle, who says he will accept no more county contracts, has also asked judges to increase his pay. "When you do, they tell you to go pound sand," he said. Two of his clients required two trials. Felix Medina was ultimately convicted of one count of armed robbery and belonging to a criminal gang. Jackie Caliri's first murder trial ended in a mistrial, but she was later convicted. "Who knew there would be two trials?" Kunkle asked. Caliri faces the death penalty, and Medina is awaiting sentencing. Now, Kunkle has to spend even more hours in the death-penalty phase of the trial,
but his contract won't cover his cost. "I will do all I can for Jackie and Felix, but I will take the financial hit," he said. Harrison says that if the state is going to continue imposing the death penalty, it should relieve the county and its contract defense attorneys of paying for it. A panel studying the death penalty, under the auspices of Arizona Attorney General Janet Napolitano, agrees. Dennis Burke, an assistant attorney general, said the commission has authorized the introduction of legislation that would reimburse counties for defending poor clients in death-penalty cases. Some attorneys say Maricopa County is coming perilously close to ignoring constitutional mandates that require reasonable pay for defending indigent clients. The lawyers rebellion is aimed at Maricopa County's 9-year-old Office of Court Appointed Counsel. The office, which employs private attorneys, provides the county another stable of attorneys to handle the defense of indigents, supplementing the Public Defender's Office. The culprit, defense lawyers argue, is the flat-fee contract, which pays private lawyers by the case, not by the hour. David Smith, Maricopa County administrator, said in an interview that lawyers understand the contract when they sign it. He said that on balance they are paid well, as about 90 percent of their cases are settled before trial.
Marc Budoff, a defense attorney who backs Terribile, said the "one-size-fits-all contract" creates a "situation where some lawyers don't want to do the work." John Rood, a former administrator for the court-appointed counsel, testified for Terribile. He said that he often had to remind county officials of their legal duty to represent clients at a "certain minimum standard." Rood said that although he granted lawyers' requests for more money in "extraordinary cases," he felt under pressure from county officials not to go over budget. In Terribile's case, he contracted in 1997 for $72,000 to defend nine clients, or $8,000 per case. He receives the standard additional $8,000 for cases that go to trial. From Sept. 8, 1997, to Sept. 28, 2000, he spent 280 hours on the Rivas case at an average hourly rate of $57. He estimates that he needs an additional 200 hours to prepare for the death-penalty phase of the case, dropping his hourly rate to about $33. Dean Wolcott, a lawyer representing the county, defended the flat-fee pay. "It's not the county's fault that Mr. Terribile can't budget his money," he said. Phil Maloney, administrator of Pima County's Indigent Defense Services, said that office pays lead lawyers $75 per hour and co-counsel $60. Terribile's hearing continues today. It is unclear when Fields will rule.


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