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'Slayer Statute' Doesn't Bar Lawyers From Keeping Fees Paid by Executrix, Judges Rule
Unanimous Ga. high court says murderer-heiress had legal right to money until she pleaded guilty
Fulton County Daily Report
November 04, 2009
Georgia's defense bar on Monday welcomed a state Supreme Court decision confirming that legal fees paid to two attorneys by the executor of an estate prior to her subsequent guilty plea for murder of her husband could not be clawed back to the estate.
The court ruled that Georgia's "slayer statute," which forbids a murderer from profiting from the death of his or her victim, could not be used to bar access to the deceased's assets until there has been a guilty plea, conviction or other "clear and convincing evidence in any judicial proceeding."
"We are pleased the Supreme Court unanimously got it right," said Christine Koehler, president of the Georgia Association of Criminal Defense Lawyers, which had filed an amicus brief and supplied additional counsel supporting attorneys Gerald P. "Jerry" Word and Maryellen Simmons as they sought to retain $75,000 in fees paid to prepare a death-penalty defense for Debra Post. Post pleaded guilty in return for a life sentence in the Oct. 25, 2001, murder-for-hire of her husband, Jerry Post, in Douglasville, Ga.
Debra Post was initially appointed executor of her husband's estate; when she was charged with his murder 11 months after his death, she hired two Carrollton, Ga., lawyers, Valerie C. Cooke and Candace E. Rader, to defend her.
When Douglas County District Attorney J. David McDade declared he would seek the death penalty, the two brought in Word and Simmons, experienced death-penalty lawyers, to assist.
On Sept. 12, 2003, Debra Post pleaded guilty, and in 2005 the Douglas County Probate Court appointed Atlanta attorney Louis Levenson to administer the estate. In 2006, Levenson filed separate suits to have all the attorney fees returned to the estate, alleging the lawyers had illegally converted estate property for their own benefit.
Word and Simmons returned $50,000 they had been holding in escrow, but a Carroll County Superior Court judge ruled they were entitled to the $75,000 fee that had been guaranteed by contract. The Georgia Court of Appeals upheld that decision last year, and Levenson appealed to the Supreme Court.
Writing for the unanimous court, Chief Justice Carol W. Hunstein ruled that, until her guilty plea, Debra Post was in lawful possession of the property and insurance proceeds she turned over to the lawyers to fund her defense.
The "uncontroverted facts are that Post had qualified as executor of the decedent's estate and letters testamentary had been issued to her; Post had not yet pled guilty to the murder charges and no final judgment of conviction had been entered in regard to the criminal indictment; and Post's felonious and intentional killing of the decedent had not been established by clear and convincing evidence in any judicial proceeding," Hunstein wrote.
Until that occurred, she wrote, "property conveyed by the murderess passed good title."
A "very disappointed" Levenson said that Monday's Supreme Court decision was "another tragedy for the family of Jerry Post. The Supreme Court has allowed these lawyers and a murderess to profit from the murder of a person.
"I believe this case will be cited by lawyers in the future to plan the plunder of estates," he said, describing the decision as "a terrible precedent that will incentivize people to turn away from their ethical responsibilities."
Daniel B. Greenfield of Bremen's Jack F. Witcher Law Office, who argued the case on Word's behalf, said the court relied on the plain language of the law in crafting its opinion.
"I think the court gave a faithful interpretation of what is an unambiguous statute, and stayed focused on the law and what the case was really about," said Greenfield. "[Levenson's] argument was essentially, I think, a public policy argument; by rejecting it, the court properly refrained from 'legislating from the bench.'"
Criminal defense attorney John "Jack" Martin, who spoke during oral arguments supporting GACDL's amicus brief, agreed.
"Any other reading of the law would have created a terrible conflict for defense lawyers," Martin said, pointing out that an attorney whose client might at some point decide to plead guilty could be pressed to advise against it because the attorney "might not get his fee."
The decision resolves a portion of the dispute arising from the Post murder. Levenson has a similar case pending against Cooke and Rader in Carroll County, which he says he is evaluating in light of the Supreme Court decision.
That case is on hold until criminal charges against Cooke and Rader, also under consideration by the Supreme Court, are resolved. Using the slayer statute as a basis, Douglas County DA McDade last year charged the lawyers with theft and theft by taking, alleging that a total of $320,483 was unlawfully extracted from Jerry Post's estate and turned over to the lawyers.
From that money, realized from the sale of real estate and insurance policies, came the payments to Word and Simmons, as well as another $75,000 paid to Cooke and Rader. According to Levenson, some $86,000 of the balance has been returned to the estate; roughly $36,000 was paid for expenses and other costs and, he said, about $60,000 -- including $10,000 in fees defending Levenson's 2005 suit to remove Debra Post as executrix -- remain in the hands of Cooke and Rader, who are no longer law partners.
McDade has charged the lawyers with theft of all the funds, including those returned to the estate.
Cooke's attorney Brian Steel and Rader's attorney Edward D. Tolley dispute those figures, and say that whatever claims Levenson and McDade may make about their clients' fees, the funds are all accounted for.
A Douglas County judge refused to throw out the criminal charges in February, and in July the Supreme Court heard oral arguments reflecting some of the same issues as those raised in the Levenson case, as well as Steel and Tolley's arguments that the statute of limitations had long since passed when McDade filed his charges.
Steel said he was encouraged by the ruling.
"It's a good opinion for the law and for my client," he said. "If there's a black-line rule holding that these funds were lawfully in possession of [Debra Post], then I believe my client is being wrongfully prosecuted."
GACDL's Koehler said she, too, thinks the recent decision bodes well for Cooke and Rader.
"The lawsuit against Word's law firm and the prosecution of Rader and Cooke are intended to have a chilling effect on defense lawyers and to discourage them from representing unpopular clients," she said.
The slayer statute "wasn't intended to penalize criminal defense lawyers for defending the accused," she said. "Hopefully this ruling will be a wake-up call to the authorities who arrested Candace Rader and Valerie Cooke, as well."
McDade was in court Monday and unable to respond to requests for comment.
The case is Levenson v. Word, No. S09G0336.
