Lawyers Say Utah Is Underfunding Death-Penalty Appellate Defense

Utah is not pro­vid­ing suf­fi­cient fund­ing to com­pe­tent­ly rep­re­sent death-row pris­on­ers dur­ing their appeals, accord­ing to a motion filed on behalf of Douglas Lovell, the man most recent­ly sen­tenced to death in the state. Because of that, Lovell’s lawyer Samuel Newton says, Lovell’s death sen­tence should be vacat­ed and he should be resen­tenced to life in prison. 

Newton bases his claim on a 2008 Utah Supreme Court opin­ion, Archuleta v. Galetka, in which the court warned that ​“low lev­els of pub­lic fund­ing for cap­i­tal cas­es” and ​“sig­nif­i­cant­ly dimin­ish­ing num­bers of qual­i­fied coun­sel able and will­ing to rep­re­sent cap­i­tal defen­dants” might force the court to over­turn death sen­tences if it ​“impedes prompt, con­sti­tu­tion­al­ly sound res­o­lu­tion” of a cap­i­tal case. Newton argues that a billing cap imposed by Weber County offi­cials and threats and med­dling by coun­ty offi­cials are com­pro­mis­ing his abil­i­ty to zeal­ous­ly represent Lovell. 

Lovell has been grant­ed an evi­den­tiary hear­ing on his post-con­vic­tion claims — includ­ing whether The Church of Jesus Christ of Latter-day Saints inter­fered with the tri­al by lim­it­ing the tes­ti­mo­ny avail­able from bish­ops who had worked with Lovell at the prison — and Newton esti­mates that the hun­dreds of hours required to inves­ti­gate and pre­pare for the hear­ing would cost about $37,000. However, Weber County offi­cials sent Newton an email accus­ing him of over­billing the coun­ty and meet­ing with his client too fre­quent­ly, and threat­en­ing that, as a result, they may have to find oth­er attor­neys for future appeals. The coun­ty has 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?” Newton said that the finan­cial strain of han­dling anoth­er death-penal­ty case has caused stress-relat­ed heart prob­lems that led him to request to be removed from that case. 

Newton’s motion is not the first time attor­neys have expressed con­cerns about Utah’s cap­i­tal defense fund­ing. In 2007, the Utah Association of Criminal Defense Lawyers filed an ami­cus brief in the case of Ralph Menzies. Affidavits sub­mit­ted by well-known defense lawyers in con­nec­tion with that brief report­ed that the final pay­ments they received for han­dling death-penal­ty appeals had amount­ed to com­pen­sa­tion at lev­els of $17 and $19 per hour — about one-tenth their nor­mal billing rates. Defense attor­ney Richard Mauro said the pay rates make it almost impos­si­ble for pri­vate attor­neys to take on cap­i­tal appeals: ​“If you are doing the work the way it’s sup­posed to be done — and try­ing to keep the lights on and run the copy machine — it’s real­ly not a fea­si­ble thing to do.”