Capital-case attorneys scarce

Last February, gunmen broke into the Yakima home of Ricky Causor and his family, killing Causor and his 3-year-old daughter.

It didn't take long for police to arrest one of the suspects: Jose Luis Sanchez Jr., who was charged with two counts of aggravated first-degree murder, the only charge in Washington that carries the possibility of a death sentence. But it took two months for the county to find an attorney to represent him.

A similar situation occurred in Pierce County. After a spate of homicides, the county struggled to find attorneys to represent all of the defendants facing charges of aggravated first-degree murder.

Criminal-defense lawyers say the problem is financial: They just can't afford to take on a capital case at the pay rate — sometimes as low as $70 an hour — being offered by the state's counties. But recently, the problem has been compounded.

A rule that took effect in 2003 set strict standards for attorneys in aggravated-murder cases, and so far only a tiny fraction of the state's lawyers has met those standards. With a limited pool of eligible attorneys to choose from, and some reluctant to take on the cases because of the fee, counties are beginning to feel the squeeze.

"It's obviously an issue," said Michael Kawamura, chief deputy in the Pierce County Department of Assigned Counsel, the equivalent of the public defender's office.

By the hour


Here are the hourly rates some counties recently paid criminal-defense attorneys to represent defendants who faced the death penalty:

King County: $75 (Charles Champion, who eventually pleaded guilty to the 2001 killing of a Des Moines police officer).

Pierce County: $70 (eight current cases).

Yakima County: $100 (Jose Luis Sanchez Jr., charged with slaying a Yakima man and his 3-year-old daughter).

Benton County: $160 (Richard Prather, charged with killing his wife and two young children earlier this year).

Klickitat County: $100 (co-defendants Michael D. Lindsey and Darlene M. McClellan, charged with killing a 22-year-old Washougal man in March).

In 2004, a State Bar report called for pay to be set "at a level that reflects the skill and experience of the attorney."

A committee of lawyers is seeking more information on the issue. They've sent out surveys to attorneys asking how much they were paid, if they've turned down potential capital cases and if so, why. They're also surveying prosecutors and public defenders to see how the cases affect their offices financially, according to Mark Larranaga, who recently went into private practice after running the Washington Death Penalty Assistance Center for several years.

When counties use salaried public defenders, this isn't an issue. But counties often must turn to private attorneys because of conflicts of interest. For example, a public-defense agency cannot represent more than one defendant in a single case because one defendant's interests often must be pitted against the other's.

Qualifications imposed

To be sure, taking on capital cases has never been lucrative. It used to be that any lawyer could try a death-penalty case and counties were free to choose.

That changed in 2003 with the implementation of a state rule requiring that the lead counsel in death-penalty cases have practiced law for at least five years and have prior capital-trial experience. After meeting those thresholds, the lawyer could apply to the Supreme Court to be included on a list of what some call "capital-case-qualified" attorneys.

Starting in January 2003, only lawyers on that list could try a death-penalty case.

The requirements came after a period of intense nationwide questioning of the death penalty, when a string of wrongful convictions came to light. Meanwhile, there was growing concern in Washington state about the number of capital convictions overturned because of ineffective counsel. The thinking was the new requirements would resolve that by ensuring that defendants facing the death penalty had qualified representation.

About 50 defense lawyers in Washington are listed as qualified for capital-murder trials; most of them are in and around King County. Some counties don't have even one death-penalty-qualified attorney.

There are usually about 15 aggravated-murder cases pending in the state at any one time. In some of these cases, prosecutors have filed a death notice, meaning they intend to seek the death penalty. In others, they're still deciding whether to instead to seek life in prison, the only other possible penalty for aggravated murder. (While they're still deciding, the defense lawyer assigned to the defendant needs to be on the "qualified" list.)

The limited number of eligible lawyers "makes it that much more difficult" to find defense counsel willing to take on a case, said Jerry Costello, chief criminal deputy prosecutor in Pierce County.

Some predict the problem is going to get worse.

"I know several people who have declined [representing a defendant facing death] because the money is so low," said criminal-defense lawyer Michael Iaria. "Good lawyers are going to stop doing it because it's just no longer worth it."

In their practices, private lawyers on the death-qualified list charge about $250 to $300 an hour, several said.

Counties are free to set their own hourly rates, which in some cases are as little as $70 an hour, according to the Washington Death Penalty Assistance Center. Surprisingly, some of the smaller counties pay higher rates — maxing out at about $160 an hour — according to the center's director, Katie Ross, because it's tough to get out-of-town lawyers to take the cases otherwise.

The federal government pays $160 an hour for death-penalty defense attorneys, which is more in line with what Washington defenders are seeking.

"I don't expect to be paid my hourly rate," said Todd Maybrown, a veteran Seattle criminal-defense lawyer. "But by the same token, should it be so far below what the market will bear that it's basically goodwill?"

Compounding the pay issue — for both the lawyers and the counties footing the bill — is the fact that death-penalty cases often take years between the arrest and the conclusion of trial.

Some lawyers say the solution would be a state-funded panel of lawyers, similar to public defenders, who handle only aggravated-murder cases.

Low pay, capped fees

While lawyers complaining about money don't exactly engender sympathy, they say that $70 an hour barely covers their overhead, including office space, a secretary, required training and malpractice insurance.

In addition, representing a client facing death is so consuming — both timewise and emotionally — that many lawyers feel they can't take on any other cases. Several argue it's downright unethical to do so because full attention is required when defending a client's life.

Iaria, of Seattle, was involved in the appeal of a death sentence out of Clark County in the 1990s in which this became an issue. In that case, the pay was low enough that the defense lawyers had to take on other clients while continuing to defend the man facing death, he said. The conviction and sentence were overturned in that case for ineffective counsel.

Iaria called the fee structure "the primary culprit."

When cases are overturned, it drags out the process even longer.

"In the end, it's terrible for the court system," Maybrown said. "The victims hate the fact that these cases often get reversed."

Several lawyers said the problem isn't just the rate of pay. In Pierce County, for example, the government often withholds a quarter of the defense attorney's payment so it can periodically review the invoices, Kawamura said.

Some counties impose a cap on the amount they'll spend on capital defense. Initially, Maybrown said, Yakima County wanted to impose a cap in the Causor case, but gave up on the idea when they couldn't find a lawyer willing to take the case with a cap.

"You get to a point where you feel like you're not being paid anymore," Maybrown said of the cap system.

The expense and difficulties associated with capital defense recently prompted the prosecutor in Pierce County, where most of the state's death notices are filed, to change his policy and decide more quickly whether to seek death.

If prosecutors decide not to seek the death penalty, Chief Deputy Costello said, it will be less expensive and easier to get lawyers because they don't need to be death-qualified. When death is removed as an option, counties are free to choose virtually any defense lawyer they wish.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Seattle Times news researcher Gene Balk contributed to this report.