Case Against Utah County for Retaliatory Firing of Lawyer Who Criticized Inadequate Funding of Death Penalty Appeal Moves Closer to Trial

A fed­er­al dis­trict court judge has issued an order mov­ing clos­er to tri­al a law­suit filed against a Utah coun­ty for the alleged retal­ia­to­ry fir­ing of a lawyer who had pub­licly crit­i­cized the coun­ty for refus­ing to ade­quate­ly fund his client’s death-penalty appeal. 

In an opin­ion pub­lished September 30, 2020, Judge Howard C. Nielson, Jr. of the U.S. District Court for the District of Utah denied a motion filed by lawyers for Weber County, Utah to dis­miss a law­suit filed by Samuel Newton (pic­tured) that claimed the coun­ty had vio­lat­ed his First Amendment right to free speech for ter­mi­nat­ing a con­tract to pro­vide appel­late rep­re­sen­ta­tion to indi­gent defen­dants in response to his efforts to obtain fund­ing for inter­view­ing and pre­sent­ing wit­ness­es and addi­tion­al brief­ing dur­ing his rep­re­sen­ta­tion of death-row pris­on­er Douglas Lovell.

The court flat­ly reject­ed Weber County’s argu­ment that Newton was sim­ply an ​“ordi­nary pub­lic employ­ee” act­ing in the course of his offi­cial admin­is­tra­tive duties when the coun­ty fired him for crit­i­ciz­ing its alleged unwill­ing­ness to ade­quate­ly fund Lovell’s appeals. A defense attor­ney “‘speak­ing on behalf of the client,’” Judge Nielson declared, ​“is emphat­i­cal­ly ​‘not the government’s speak­er.’” The coun­ty, Nielson wrote, could not ​“ter­mi­nate an attor­ney whom it has engaged to rep­re­sent indi­gent crim­i­nal defen­dants based on his or her offi­cial com­mu­ni­ca­tions with­out fur­ther First Amendment scrutiny.” 

Judge Nielson also reject­ed the county’s con­tention that Newton’s speech was not pro­tect­ed by the First Amendment because it involved per­son­al con­trac­tu­al mat­ters, rather than mat­ters of pub­lic con­cern. ​“To the con­trary,” Judge Nielson wrote, ​“these com­mu­ni­ca­tions impli­cat­ed mat­ters such as whether the County was under­fund­ing the defense in a high-pro­file cap­i­tal case, whether the County was seek­ing to lim­it Mr. Newton’s com­mu­ni­ca­tions with his client, and whether the County was sec­ond guess­ing and under­min­ing Mr. Newton’s ​‘exer­cise of inde­pen­dent judg­ment on behalf of the client.’”

Although the court allowed Newton’s First Amendment claim against the coun­ty to move for­ward, it dis­missed the por­tions of his com­plaint seek­ing dam­ages against the coun­ty com­mis­sion­ers in their indi­vid­ual capac­i­ties, find­ing that they had qual­i­fied immu­ni­ty against suit. Judge Nielsen also dis­missed Newton’s claim that the com­mis­sion­ers and the coun­ty had engaged in a con­spir­a­cy to obstruct jus­tice by ​“operat[ing] in con­cert to vio­late [his] rights.”

Before his appel­late defense con­tract was can­celled by Weber County, Newton had a sep­a­rate con­tract with the coun­ty to rep­re­sent Douglas Lovell in the appeal of his 2015 death sen­tence. That con­tract pro­vid­ed for up to 500 hours of appel­late ser­vices at a rate of $150 per hour. Based on evi­dence uncov­ered dur­ing Newton’s rep­re­sen­ta­tion, the Utah Supreme Court remand­ed the case to the tri­al court for an evi­den­tiary hear­ing on alleged inves­tiga­tive fail­ures by Lovell’s tri­al lawyer and the pos­si­ble inter­fer­ence by the Church of Latter-Day Saints with the tes­ti­mo­ny of bish­ops who had worked with Lovell in prison. Having reached the fund­ing lim­it autho­rized in his ini­tial agree­ment with the coun­ty, Newton asked for fur­ther fund­ing in August 2017, esti­mat­ing that it would take an addi­tion­al 500 – 750 hours. The coun­ty said it would pay no more than $15,000, pub­licly accus­ing Newton of over­billing, unnec­es­sar­i­ly inter­view­ing wit­ness­es the coun­ty claimed were irrel­e­vant, and meet­ing too fre­quent­ly with his client. The coun­ty refused to move off its $15,000 offer even after Newton reduced his request to an inter­im autho­riza­tion of $37,500 for further work.

Newton then sought to with­draw from the case, cit­ing the under­fund­ing and the toll the dis­pute with the coun­ty was tak­ing on his health. The coun­ty had placed him in a ​“ter­ri­ble catch-22,” Newton said: either he could ​“rep­re­sent Mr. Lovell zeal­ous­ly and lose his liveli­hood or com­pro­mise Mr. Lovell’s case and save his practice.”

After the court grant­ed his request to be tak­en off the case, Newton con­tin­ued speak out about Weber County’s fail­ure to prop­er­ly fund Lovell’s appeal. In October 2017, claim­ing that Newton had ​“made var­i­ous rep­re­sen­ta­tions to the media and to the court that have been untruth­ful and harm­ful to the county’s rep­u­ta­tion,” the Weber County com­mis­sion­ers ter­mi­nat­ed Newton’s con­tract to pro­vide indi­gent appeals ser­vices to the coun­ty in oth­er cas­es two years before its sched­uled expiration date. 

The dis­pute over the fund­ing of Lovell’s death-penal­ty appeal is an out­growth of sys­temic issues in Utah’s pro­vi­sion of coun­sel in cap­i­tal cas­es. The state has cre­at­ed a trust fund admin­is­tered by the Utah Indigent Defense Commission to defray the costs of cap­i­tal-defense rep­re­sen­ta­tion. All but five Utah coun­ties make an annu­al pay­ment into the trust to ensure fund­ing is avail­able in the event of a cap­i­tal pros­e­cu­tion in their coun­ty. However, Weber County — which has long been crit­i­cized for under­fund­ing defense lawyers in death penal­ty cas­es — does not con­tribute to the fund, plac­ing it on the finan­cial hook for the entire cost of rep­re­sen­ta­tion of indi­gent cap­i­tal defen­dants at tri­al and on appeal.