Utah Capital Defense Lawyer Who Lost County Contract After Criticizing Underpayment in Death Penalty Cases Gets $250,000 Settlement

A for­mer Utah defense lawyer has received a $250,000 set­tle­ment after suing Weber County for alleged­ly fir­ing him in retal­i­a­tion for his pub­lic crit­i­cism of the county’s refusal to prop­er­ly fund a death-row prisoner’s cap­i­tal appeal and its inter­fer­ence in the case. 

Samuel Newton (pic­tured), now a law pro­fes­sor at the University of Idaho, reached a set­tle­ment with coun­ty offi­cials in a long­stand­ing dis­pute over the Weber County Commissioners’ ter­mi­na­tion of his con­tract to pro­vide crim­i­nal defense rep­re­sen­ta­tion to indi­gent pris­on­ers in their appeals of Weber County con­vic­tions. The set­tle­ment, announced on April 22, 2021, comes in the wake of a September 2020 rul­ing by a Utah fed­er­al judge that denied the county’s motion to dis­miss Newton’s retal­ia­to­ry fir­ing claim.

In its September rul­ing, Judge Howard C. Nielson allowed Newton’s case to pro­ceed to tri­al, reject­ing the county’s con­tention that Newton’s crit­i­cism of its actions con­sti­tut­ed speech about con­trac­tu­al mat­ters that was not pro­tect­ed by the First Amendment. ​“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,’” which con­sti­tut­ed pro­tect­ed speech regard­ing mat­ters of public concern.

In a joint state­ment, Newton and the coun­ty wrote: ​“Both par­ties were con­fi­dent in the strength of their respec­tive posi­tions and the case was head­ed to tri­al. After con­sid­er­ing the antic­i­pat­ed costs and poten­tial risks of going to tri­al, the par­ties decid­ed to medi­ate. Among oth­er things, the set­tle­ment amount took into account the costs of pro­tract­ed lit­i­ga­tion, attor­ney fees, and the amount Mr. Newton would have received under his appel­late con­tract if it were not ter­mi­nat­ed ear­ly.” The full details of the set­tle­ment remain confidential.

The dis­pute came to a head while Newton was rep­re­sent­ing Utah death-row pris­on­er Douglas Lovell on appeal. Newton had obtained an order from the Utah Supreme Court return­ing the case to the coun­ty courts 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. Newton request­ed addi­tion­al fund­ing for the rep­re­sen­ta­tion, esti­mat­ing that the case would take an addi­tion­al 500 – 750 hours. The coun­ty said it would autho­rize no more than $15,000 and pub­licly accused Newton of over­billing, unnec­es­sar­i­ly inter­view­ing wit­ness­es the coun­ty claimed were irrel­e­vant, and meet­ing too fre­quent­ly with his client. Newton then with­drew from the case, claim­ing that the coun­ty had placed him in a ​“ter­ri­ble catch-22” in which he could either ​“rep­re­sent Mr. Lovell zeal­ous­ly and lose his liveli­hood or com­pro­mise Mr. Lovell’s case and save his practice.” 

In an October 2017 com­men­tary in the Salt Lake Tribune, Newton wrote: ​“Our cap­i­tal pun­ish­ment sys­tem is a cha­rade. We pro­vide a ​‘defense lawyer’ but either give some­one with no expe­ri­ence or refuse to give the nec­es­sary resources to expe­ri­enced attor­neys. In Utah, a state with one of the low­est death penal­ty pop­u­la­tions in the United States, which has not exe­cut­ed a defen­dant since 2010, almost every attor­ney to take a death penal­ty case has suf­fered extreme per­son­al loss. The result is a cri­sis-lev­el lack of qual­i­fied attor­neys will­ing or able to take on cap­i­tal cas­es.” Several weeks lat­er, Weber County ter­mi­nat­ed Newton’s pub­lic defense con­tract, after Newton con­tin­ued to crit­i­cize the coun­ty for refus­ing to pro­vide the fund­ing he believed was nec­es­sary to pur­sue Lovell’s appeals.

Utah has cre­at­ed a trust fund admin­is­tered by the Utah Indigent Defense Commission to help coun­ties defray the costs of cap­i­tal-defense rep­re­sen­ta­tion. Most of the state’s coun­ties make an annu­al pay­ment to the trust to ensure fund­ing is avail­able in the event of a cap­i­tal pros­e­cu­tion or appeal in their coun­ty. Weber County does not con­tribute to the fund, leav­ing the coun­ty respon­si­ble for the entire cost of indi­gent cap­i­tal defense at tri­al and through­out the state appeal process.

In February 2021, the tri­al court denied Lovell’s peti­tion to over­turn his death sen­tence. That rul­ing is being appealed to the Utah Supreme Court.