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Even with private lawyer, public can still pay for murder defense

By Harriet Ryan
Court TV

Mark Geragos
Mark Geragos

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MODESTO, California (Court TV) -- When Scott Peterson's family hired Mark Geragos as his lawyer, they set him apart from nearly all other capital murder defendants.

Because death penalty defenses can run into the millions and few facing such charges are wealthy, virtually everyone charged with capital crimes is declared indigent and represented by a public defender or a court-appointed lawyer.

In California, high-profile defendants, such as David Westerfield and Erik and Lyle Menendez, are sometimes able to hire private lawyers initially, but if they run out of money before the case is resolved, as both Westerfield and the Menendez brothers did, state law often requires taxpayers to pick up the private lawyer's bill, albeit at a substantial government discount.

It is unclear how Peterson, a fertilizer salesman before his arrest for the double-murder of his wife and unborn son, and his parents and six siblings plan to pay Geragos and a coterie of co-counsel, private investigators, and paralegals who will work the case. Peterson said during his April 21 arraignment that he could not afford a lawyer, and a judge assigned him the Stanislaus County public defender.

But Geragos, a Los Angeles-based lawyer who represented Congressman Gary Condit and actress Winona Ryder, has done extensive television commentary on the case. He visited Peterson in jail before announcing publicly that he was considering representing him. His decision was made official at a hearing Friday morning.

For a typical murder case in Modesto, the public defender's office would represent any defendant, like Peterson, who said he was indigent. Normally, the court reviews the defendant's finanical records and property holdings to make sure he cannot pay. Peterson was carrying $10,000 in cash at the time of his arrest and owns a home, but murder trials and especially capital cases, which can run into the millions, often exceed the resources of even someone who is comfortably middle class.

If a conflict arose with the public defender's office -- for example, in Peterson's case, the office is also representing men who allegedly burglarized a neighbor's home around the time of Laci Peterson's murder -- the indigent defendant could choose from two private firms in the city who are paid a flat monthly rate by the county to handle those cases.

But taxpayers are not off the hook just because Peterson went outside the public defense system and hired Geragos. Certainly, if he or his family raised enough money, they could pay the entire cost of the trial. Attorney fees in capital cases are estimated at between $500,000 and $1 million, with other trial costs, such as forensic testing, expert testimony and investigators, often doubling the price tag.

But if Peterson and his family can only pay a portion, the county must kick in the rest. In some cases, relatives agree to pony up the private attorney's fees, but other costs, from mental examinations to DNA testing, are billed to the county's indigent defense fund.

In the cases of Westerfield and Menendez, however, citizens ultimately assumed both the private legal fees and other trial costs. Under a 1977 California Supreme Court decision, defendants who have built a relationship of "trust and confidence" over time with a privately retained lawyer can keep that attorney at the public's expense even if they can no longer afford the bills.

"The decision [in the 1977 case] basically said you've got an ongoing, well-established relationship with a lawyer and under the Sixth Amendment right to counsel, it makes no sense to disrupt that relationship," said Elisabeth Semel, a clinical professor at the University of California at Berkeley School of Law.

In the case of Westerfield, who was convicted of killing 7-year-old Danielle van Dam last year, he retained lawyers Steven Feldman and Robert Boyce before he was even arrested, and then deeded his home to the attorneys who promptly put it on the market for $489,000. But before the case went to trial, and with the house still unsold, the lawyers told a judge they had exhausted Westerfield's money preparing his defense and asked to change their status from retained counsel to appointed counsel paid with public funds. A judge initially refused to keep them on, but an appellate court reversed that decision, citing the lawyers' relationship with Westerfield and their knowledge of the case.

In the Menendez case, the brothers, charged with murdering their parents, hired Leslie Abramson to represent them during their first trial, which ended in a hung jury. For the retrial, they could no longer afford Abramson, but since she had represented the brothers for years and knew the case thoroughly, a judge appointed her at taxpayer's expense.

The final bill for these cases is not known because financial records are confidential. Courts consider a defense team's spending to be a road map to its strategy and therefore seal the records until all appeals are completed.

Although some taxpayers might bristle at the idea of financing these defenses, California courts have repeatedly upheld the process. Sometimes, as in the Menendez case, legal experts note that funding a private attorney who has a comprehensive knowledge of the case is cheaper in the long run than asking a public defender's office to spend time familiarizing themselves with a new and complex case. The extra financial and staff costs, including the costs of having to divert lawyers from other cases, can be enormous.

If Peterson ran short of money before completing his case and wanted to continue with Geragos as his attorney, he would have to convince a judge that the pair had built "trust and confidence" and that replacing the lawyer would be detrimental to his defense.

He would also have to convince Geragos to work for far less money than he is accustomed. Private defense lawyers in Stanislaus County capital cases earn $100 per hour. For extraordinary cases, the rate can climb to $125. Geragos, according to other Los Angeles criminal defense lawyers, charges regular clients $500 per hour.

"One hundred dollars an hour wouldn't even cover the overhead in his office," said one colleague, who asked not to be identified.

Donald Lundy, executive officer of Stanislaus County's Superior Court, said he had not talked to Geragos about the rates, but said they were firm.

"We're not known for big time payment of fees for these guys," he said.

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