Lawyers Defend Fees in 'Theft by Receiving' Case

Greg Land

Daily Report

Fascinating questions of legal ethics stem from the prosecution of two Carrollton, Ga., lawyers accused of stealing cash and property from a murder victim's estate by accepting $75,000 from their client, the victim's wife who pleaded guilty to planning the killing.

But arguments in the case last week at the Court of Appeals of Georgia centered less on what obligation the lawyers had in knowing the guilt of their client and the source of their fees than on the statute of limitations.

Representing the defendants, Brian Steel and Edward D. Tolley told a three-judge panel that Douglas County District Attorney J. David McDade waited too long before presenting an indictment against the lawyers, Valerie C. Cooke and Candace E. Rader.

Under Georgia law, a felony indictment must be issued within four years of the crime commission. But according to O.C.G.A. §17-3-2, the limitations clock tolls when "[t]he person committing the crime is unknown or the crime is unknown."

The case stems from the slaying of truck driver Jerry Post in the early morning hours of Oct. 25, 2001, at his Douglasville, Ga., work site.

In September 2002 his wife, Debra Post, and three others were indicted for murder; Debra Post was accused of arranging the killing. She retained Cooke and Rader to represent her and paid them an initial $50,000 retainer on Sept. 27, 2002, and two days later deeded two parcels of property -- from Jerry Post's estate -- to them, as well. The property would later sell for $239,639.

Expecting their client to face the death penalty, the lawyers sought the assistance of two more Carrollton attorneys, Gerald P. Word and Maryellen Simmons, who were experienced in handling capital cases.

According to court filings, the lawyers agreed to represent Debra Post through trial for a combined $300,000 -- $150,000 for each pair of attorneys. Any leftover funds would be returned to their client.

On Oct. 2, 2004, Debra Post pleaded guilty to murder in exchange for a sentence of life without parole. Each pair of attorneys retained half their fees, $75,000 each, with the remaining $150,000 returned to Post.

In January 2007, McDade asked the Georgia Bureau of Investigation to look into Cooke and Rader's payment arrangement with Post. In October 2008, the pair were indicted on six counts of theft by taking and one count of theft by receiving stolen goods.

The theft by taking charges stem from payments from Debra Post or property transfers from her to the lawyers between Sept. 27, 2002, and Feb. 7, 2003.

The indictment said the theft by receiving stolen good charge occurred April 28, 2005, after Post had pleaded guilty and the Douglas County Probate Court had ruled that Debra Post was ineligible to inherit from her murdered husband.

At that point, said the indictment, the lawyers "knew or should have known" their fees were stolen property.

But the law maintains that, if a crime is charged after the statute of limitations has run, the basis for the tolling must be noted in the indictment. The indictment issued in August 2008 asserted that the time began running Oct. 8, 2004, when Jerry Post's son, Brian Post, learned that the alleged thefts had been committed due to his stepmother's confession.

In February, Cooke and Rader's lawyers asked Douglas County Superior Court Judge David T. Emerson to rule that the indictment was invalid because, they argued, the four-year statute of limitations started running in November 2002, almost seven years before the lawyers were indicted. Their argument was that the district attorney and local law enforcement had been investigating Debra Post's role in her husband's death in November 2002.

Emerson declined to toss out the indictment, ruling that the issue should be decided by a jury. Cooke and Rader took their case to the Georgia Court of Appeals, with an argument Thursday before Presiding Judge J.D. Smith and Judges Debra H. Bernes and Herbert E. Phipps.

Steel, representing Cooke, said that Georgia law is clear that "the bill of indictment must allege that the crime was unknown to the state" for the statute of limitations to toll, but no notice was included in the indictment.

Tolley, representing Rader, then rose to expand the defense arguments beyond the timeliness issues. The prosecutors, he said, were asking the court to adopt the "novel position" that, nearly one year after being named the executor and beneficiary of her husband's estate, Debra Post was barred from using funds she controlled for her own defense, and that her lawyers should be held criminally liable for providing that defense.

"No money and no property was taken by Ms. Rader and Ms. Cooke from the estate of Jerry Post," he said.

"A will takes effect instantly upon the testator's death," said Tolley. "In other words, the minute he died, she owned [the property]. But it doesn't stop there, because one year before [Debra Post] was convicted, the will was probated, before she ever hired the lawyers."

When McDade obtained the indictment last year, he appointed former South Georgia Circuit District Attorney J. Brown Moseley, now of counsel with Hall, Booth, Smith & Slover in Albany, Ga., as special prosecutor in the case.

McDade remained seated as Moseley took the podium, his voice booming through the chamber, to hammer home his point that Cooke and Rader pressured Debra Post to sign over the property from her husband's estate to the lawyers.

"On that day, Debra Post was sitting in the Douglas County Jail, in the orange jumpsuits or whatever they wear there, a person of limited background facing the death penalty," said Moseley.

"I am satisfied that she would have done anything they asked her to do," said Moseley, and when the lawyers demanded that she deed over the properties, she readily assented.

"For two lawyers to do something like that is nothing less that an embarrassment to every lawyer in this state," said Moseley.

Phipps cut him off, driving back to the tolling arguments raised by Steel and Tolley.

"When did the state learn of this?" inquired the judge.

The theft "was unknown to Brian Post until Oct. 8, 2004," responded Moseley.

"But when did the state learn of it?" persisted Phipps.

"I'm getting to that," said Moseley. He argued that the indictment's citing of Brian Post's lack of knowledge until October 2004 was sufficient to show that the four-year statute of limitations did not start running until then.

"The statute that deals with the tolling is a very simple, one-sentence rule," he said, requiring that a person against whom a crime was committed not have any knowledge of it until a particular date, at which time the tolling begins.

"That's all you have to put in the indictment," Moseley said. The law includes no mention of "the state," as the defense attorneys argued, he said.

Steel again rose to close the segment, arguing that if the court simply allowed indictments to be based on the knowledge of one potential victim, prosecutors could prolong charging a crime almost indefinitely.

Suppose, Steel asked, he owned a home in South Georgia but lived in Atlanta, and the house was burglarized without his knowledge. Police might make an arrest but fail to make a case; then, if he found about the break-in several years later, the police could use his lack of knowledge to issue an indictment.

The state knew of Post's crime years earlier, he said. "The state presented their case and indicted her in 2002."

By seeking criminal charges against Cooke and Rader nearly six years later, he said, "Mr. Moseley has flipped the burden of proof."

The cases, Rader v. State, No. A09A1552 and Cooke v. State, No. A09A1553, are related to another matter argued last month at the Supreme Court of Georgia. In that matter, the court-appointed executor for Jerry Post's estate is challenging the legality of Debra Post's use of her inheritance to fund her defense, citing Georgia's "slayer statute," which forbids a murderer from inheriting from the estate of his or her murder victim.

That case is Levenson v. Word, No. S09G0336.