High Cost of Death-Penalty Cases Continues to Vex Utah County

The high cost of meet­ing its oblig­a­tion to pro­vide con­sti­tu­tion­al­ly-man­dat­ed effec­tive rep­re­sen­ta­tion for indi­gent defen­dants in cap­i­tal cas­es con­tin­ues to gen­er­ate con­tro­ver­sy in Utah​’s fourth largest coun­ty. With two cap­i­tal tri­als pend­ing and a lengthy post-con­vic­tion pro­ceed­ing under­way on whether a court-appoint­ed lawyer in a third cap­i­tal case pro­vid­ed inef­fec­tive rep­re­sen­ta­tion, the Salt Lake Tribune reports that Weber County is fac­ing bills for defense costs that will run into the hun­dreds of thou­sands of dol­lars. If pros­e­cu­tors seek the death penal­ty in anoth­er case, County Commissioner Gage Froerer (pic­tured) told the Tribune, the coun­ty might have to cut fund­ing for bud­get items like parks or roads to pay for it.

Most coun­ties in Utah con­tribute to a state-man­aged fund that helps pay for the costs of death-penal­ty cas­es. Weber County, how­ev­er, is one of five coun­ties that — hop­ing to avoid the ini­tial pay­ment of $300,000 — have opt­ed not to pay into the fund. That deci­sion has put the coun­ty — which has long been crit­i­cized for under­fund­ing defense lawyers in death penal­ty cas­es — on the finan­cial hook for the entire cost of rep­re­sen­ta­tion of indi­gent cap­i­tal defen­dants and death-row prisoners. 

In 2012, Utah state leg­isla­tive ana­lysts esti­mat­ed that the cost of tri­al and appeals in a case that result­ed in a death sen­tence was $1.6 mil­lion high­er than a life-with­out-parole sen­tence. A lat­er study, the Tribune report­ed in 2018, esti­mat­ed that Utah state and coun­ty tax­pay­ers have spent near­ly $40 mil­lion pur­su­ing pros­e­cu­tions in 165 death-penal­ty cas­es over the pre­vi­ous two decades. Only two of those cas­es result­ed in death sen­tences. Commissioner Froerer, who dur­ing his pri­or tenure in the Utah state leg­is­la­ture spon­sored a bill to abol­ish the state’s death penal­ty, expressed con­tin­u­ing con­cerns about the costs of the state’s death penal­ty. ​“That was one of my con­cerns and major issues is the cost involved,” he said, ​“and the results usu­al­ly aren’t very pro­duc­tive in solv­ing the issues for soci­ety or the victim’s family.” 

Funding death-penal­ty rep­re­sen­ta­tion has been an ongo­ing con­cern in Weber County. In November 2017, the coun­ty ter­mi­nat­ed Samuel Newton’s con­tract to pro­vide cap­i­tal rep­re­sen­ta­tion ser­vices after Newton pub­licly crit­i­cized it for under­fund­ing the rep­re­sen­ta­tion of Douglas Lovell​’s post-con­vic­tion appeal of his con­vic­tion and death sen­tence. Newton had esti­mat­ed that the hun­dreds of hours required to inves­ti­gate and pre­pare for a hear­ing in the case would cost about $37,000. However, the coun­ty capped his pay­ment for the hear­ing at $15,000. ​“That’s the bind,” Newton said. ​“Do I rep­re­sent my client zeal­ous­ly like I’m con­sti­tu­tion­al­ly required to do? Or do I tread light­ly so I don’t lose my liveli­hood?” In response, County Commissioner James Harvey ter­mi­nat­ed Newton’s con­tract, assert­ing that Newton’s com­ments about under­fund­ing were ​“harm­ful to the county’s rep­u­ta­tion.” Harvey belit­tled Newton for sup­pos­ed­ly spend­ing too much time meet­ing with or talk­ing to his clients when ​“all the state wants to know is if the appro­pri­ate deci­sion has been made.”

After Newton’s fir­ing, the coun­ty attorney’s office reached out to numer­ous crim­i­nal defense lawyers to see if they would rep­re­sent Lovell. Only one lawyer applied, and she was hired to rep­re­sent Lovell. ​“It’s to [the attorney’s] advan­tage to do as lit­tle work as pos­si­ble, to talk to me as lit­tle as pos­si­ble,” Lovell said in 2017, express­ing dis­sat­is­fac­tion about the var­i­ous lawyers who have rep­re­sent­ed him over the last three decades. ​“Because it’s get­ting into that mon­ey thing. That’s hap­pened time after time after time on this case.” 

County offi­cials esti­mate that the coun­ty has spent more than $370,000 on Lovell’s defense over the last eight years since his con­vic­tion was over­turned. That num­ber does not include the cost of pros­e­cut­ing Lovell. On August 5, Lovell’s post-con­vic­tion hear­ing began. That hear­ing, in which Lovell has argued that his tri­al lawyer — who was lat­er sus­pend­ed from prac­tice for mis­han­dling numer­ous cas­es, includ­ing Lovell’s — failed to inter­view 16 of 18 peo­ple his inves­ti­ga­tor had iden­ti­fied as poten­tial mit­i­ga­tion wit­ness­es, is expect­ed to take a month. 

Weber County is also cur­rent­ly pay­ing for the cap­i­tal defense of Miller Costello and Brenda Emile, who were charged with the mur­der of their 3‑year-old daugh­ter. The coun­ty has capped attor­ney con­tracts at $100,000 for each defen­dant. Half of the pend­ing cap­i­tal cas­es in Utah are in Weber County.