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Low pay, high complexity and the inevitable length of capital punishment cases have led an increasing number of defense attorneys to refuse the work, while others are challenging their wages in court or taking only federal cases. The resistance to accepting capital cases has left some states scrambling to find qualified attorneys. Lawyers said they have seen problems with attorney shortages and pay issues for capital cases in a number of jurisdictions in recent months. The states include Arizona, Georgia, Louisiana, Texas and Utah. “It’s difficult to say on a national basis what’s happening, but we do know that some states have had problems,” said Kathryn Kase, a lawyer in Houston who co-chairs the Death Penalty Committee for the Washington-based National Association of Criminal Defense Lawyers. “What we do know is that we have a greater number of lawyers asking for assistance with seeking higher fees in capital cases,” she said. As more lawyers grow dissatisfied with their pay in state courts, there has been a “federal brain drain,” said Sean O’Brien, visiting professor of law at University of Missouri-Kansas City School of Law. “What you’re left with are mediocre lawyers doing state-court work so that the quality of representation in capital state cases is regressing as a result,” he said. O’Brien said he takes state cases only if they are continuations of his federal cases. In Utah, Mark Field, capital litigation staff attorney for the Utah Administrative Office of the Courts, said he called a dozen lawyers recently to find one for a post-conviction capital case. Menzies v. Galetka, No. 030106629 (Salt Lake Co., Utah, Dist. Ct.). When they all turned him down, he even made two calls outside the state � one to a lawyer in Idaho and another one to New Mexico � but has had no luck. Several lawyers didn’t take the case for personal reasons, but low pay was the most common reason, he said. A status hearing about appointment of counsel has been scheduled for June 25, Field said. Arizona currently has eight capital post-conviction cases where petitioners are waiting for appointment of counsel, including one who has been waiting for more than two years and two who have been waiting for more than a year, said Dale Baich, assistant federal public defender in the capital habeas unit at the Office of the Federal Public Defender for the District of Arizona in Phoenix. Louisiana also has shortages. “We had a Louisiana lawyer call our office asking if we can take cases or recruit counsel,” Kase said. Lapsed certifications Ronald F. Ware, executive director of the Calcasieu Parish Public Defenders Office in Lake Charles, La., said he is one of only two lawyers certified to handle capital cases in the county, down from at least five lawyers five years ago. “A lot of people have had certification lapses because of the funding,” he said, adding that the $72 hourly rate and the long time it often takes to get paid for capital cases has kept many lawyers away from such work. Prosecutors have become aware of the shortage and have become more reluctant to seek the death penalty as a result, he said. Calcasieu Parish District Attorney John DeRosier said the lawyer shortage is not a controlling factor in determining when to seek the death penalty. However, prosecutors sometimes consider the availability of trial lawyers in first-degree murder cases that could be charged as second-degree murder cases, thus avoiding the issue of the death penalty entirely, he said. “We have a number of cases that we have pending right now and we have recently reduced two first-degree murder charges to second-degree murder in the interest of justice to victims’ families so we can get these cases to trial,” he said. Widely varying rates Pay for capital cases varies greatly from state to state and even county to county, with some jurisdictions paying lawyers hourly rates, others providing lump-sum payments at various points, and some paying flat rates per case. In Georgia, Jeffrey Sliz said he was getting $125 an hour for a capital case that he’s had for about one year even though that is about 40% of his standard hourly rate. When statewide budget problems led officials to ask him to accept $95 an hour earlier this year, Sliz quit the case. “I’m up for defending those with the death penalty but not to the point of going in the toilet myself,” he said. Sliz said the high-profile case of Brian Nichols, who is charged with multiple murders in a 2005 Atlanta courthouse shooting, has drained the state’s public defender system with more than $1 million in costs. A judge has postponed jury selection for Nichols’ case until September, citing funding as one of the reasons. Georgia v. Nichols, No. 2005SC29988 (Fulton Co., Ga., Super. Ct.). Lawyers said they often have to attend many hearings and go through a lot of bureaucracy to get paid for work on capital cases. “I have had to follow judges around the courthouse with an order to pay an expert and just beg them to pay,” said Philip Wischkaemper, capital assistance attorney in the Lubbock office of the Texas Criminal Defense Lawyers Association. Fed up with their wages and, in some states, caps and limits on how much they are allowed to spend, some lawyers have taken the issue to court. Tom Phalen, a Phoenix-based attorney who has been handling capital cases for more than 20 years, filed a special action in Arizona Supreme Court in 2005 in a post-conviction case after being told he would not get paid beyond 200 hours of work. Phalen, who said he clocked more than 300 hours on the case, eventually prevailed. Murdaugh v. O’Toole, No. CV-05-0305-SA (Ariz.). “The stakes are as high as they come,” he said of working on death penalty cases. “It should be expensive and the lawyers who defend these cases should be paid a premium because there isn’t a fight that’s more important. So if it’s going to cost $200,000 or more, I’m not ashamed of it � I’m not ashamed to say we’re underpaid and we deserve to fight for it.” Test of wills John Wright, a veteran attorney in Huntsville, Texas, recently complained about wages for a capital case he’s had since 1979. As a result, court officials several months ago agreed to raise his hourly pay from $100 to $125 and his co-counsel’s pay from $50 to $100. “It’s often a test of will � they are trying to see how bad you really need it,” Wright said. “I’m not saying I never had less funding than I wanted, but by making it clear that we’re going to make a legal issue if we don’t get sufficient funding, most judges then don’t give you that issue.” Phyllis Mann, who worked on more than 20 capital cases in Louisiana and now does criminal consulting work in Dallas, said lawyers have been left with no choice but to take the wage issue to court, which she said has unfortunately led to more delays. “Nothing happens other than litigation about funding,” she said. “No one can get justice and nothing is happening in terms of the actual prosecution moving forward.” Natman Schaye of the Law Office of Natman Schaye in Tucson, Ariz., said in addition to better pay, federal courts generally involve less bureaucracy. “The federal judges seem to realize the importance of doing a good job,” he said. “It’s not that there are no financial pressures on the federal level, but it’s certainly less than in the counties.” Various studies point to the steep costs of capital cases. For example, a 2003 Kansas study found that the median cost of a death penalty case through execution cost $1.26 million, with trial costs exceeding $500,000. Malia Brink, indigent defense counsel with the National Association of Criminal Defense Lawyers, said defense lawyers’ pay has not kept up in the most crucial area of law. “There is no doubt that in death penalty cases it is essential to have a competent death penalty team, so the resources have to be there,” she said. “You have to do all cases right, but it’s fundamentally important when the punishment is death.”

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