Judges Pulling in Reins on Defense Costs in Death Penalty Cases

Faced with an unprecedented onslaught of death penalty cases, San Diego Superior Court judges are mobilizing to tighten their watch on public expenditures in defense of accused killers.

Some defense lawyers, however--including the county public defender--say the cost-control measures under consideration by the bench threaten to hamper pretrial case preparation and violate the confidentiality needed to mount a defense.

A group of judges and lawyers is scheduled to meet today to work out an understanding on the cost-monitoring program. The judges--who have the statutory responsibility to oversee defense expenditures in death penalty cases--have been formulating the program during the last six weeks.

If the attorneys cannot obtain the guarantees they want for defendants’ rights, Public Defender Melvin Nitz has said they may ask the 4th District Court of Appeal to intervene.

“The system they’re proposing is wide open for a lack of confidentiality,” Nitz said at a recent meeting of the county’s Indigent Defense Advisory Board. “It would be a terrible system.”

State law allows defense attorneys to ask the courts to pay for investigators, psychologists and other experts used in preparing the defense in a death-penalty case. A judge other than the one presiding in the case is designated to rule in private on the “reasonableness” of the request, then permit needed expenditures. At the end of the trial, the attorney is required to provide a full accounting to the county Office of Defender Services of all spending.

In practice, attorneys have given sworn statements that they need money and the courts have allowed the approved amounts to be placed in trust accounts, from which the lawyers can draw as bills come due. The court’s OK assures that the county is reimbursed for the costs by the state.

San Diego judges, though, say defense expenditures--which can soar to tens of thousands of dollars to bring a death penalty case to trial--have been out of control under existing procedures.

“This is one of the rare situations where the defense has far more assets to deal with and can spend much more money than the prosecution can,” said Superior Court Judge Barbara Gamer, the supervising criminal judge. “We need much more accountability.”

According to Gamer, San Diego defense attorneys at times have shown little discipline in their spending on death penalty cases.

“I get the sense that many of the defense attorneys here will ask for the moon,” she said. “Several times I felt I was sandbagged, because I allocated a certain amount of money and then the attorney would come around and say, ‘Now it’s not enough.’ ”

Defense attorneys also have gone “forum shopping,” Gamer said--taking a request to one judge that another had turned down, without telling the second judge about the earlier decision.

The judges’ concerns peaked last summer under the pressure of San Diego County’s heaviest load of death penalty cases since capital punishment was restored in California in 1977.

Rather than the one or two cases that have been the rule in the last seven years, the court system this year has had to contend with 10 death penalty cases, including the charges against six people accused of killing Marine Staff Sgt. Carlos Troiani on a deserted road in Oceanside.

“What creates this problem is additional business,” said Superior Court Judge Michael Greer, who is heading the cost-monitoring program. “More death penalty cases have created the need for tighter controls.”

Statistics from the state controller’s office underline the change. In the 1981-1982 fiscal year, San Diego County spent $30,000 on special death penalty defense costs. But in the year ended June 30, spending reached nearly $132,000. The state ultimately bears the costs of death penalty defenses, which rise and fall depending on the number of cases pending.

In response to the flood of cases, the judges have taken two steps. In August, they centralized the monitoring, assigning Greer to handle all spending requests from defense lawyers. That replaced the past practice of parceling the hearings out among several judges.

Further, Greer has proposed an accounting system that would require attorneys to submit bills to auditors in the county’s Office of Defender Services and then obtain a check for the services, rather than draw from a less-regulated trust account.

The entry of a third party in the payment process is what worries defense lawyers.

“Having to give the bill to the auditing office means there’d be a whole raft of people who would know what’s going on” in defense preparations, said Nitz, who directs the Office of Defender Services. “The confidentiality would be broken.”

John Cotsirilos, a defense lawyer participating in the discussions, added that attorney-client privileges, defendants’ protections against self-incrimination, and the guarantee of effective assistance of counsel all are threatened by potential leaks from the proposed accounting system.

“There should be a close monitoring of these requests and a review of these requests by the court,” Cotsirilos said. “What we disagree with is them creating a mini-bureaucracy to deal with the requests when the statutes, the state legislation, has already created a very simple procedure.”

Greer said the defense lawyers’ anxiety was unfounded. “The auditing function is being set up through the Office of Defender Services, through the defense bar,” he said. “Who’s going to leak the information? Themselves?”

Moreover, he said, the cost-control program will have benefits. “I’ll end up knowing what the going rates for psychologists, criminologists, clerks and investigators are,” he said. “I’ll make sure they’re not being overused.”

The defense lawyers, however, say the judges could gain control of such costs within the existing system, if only they would be stricter with lawyers and use the private hearing procedure as it is envisioned in the penal code.

“If funding has become chaotic or there have been inappropriate funding requests, it’s because the judges haven’t known how to use the statute,” Cotsirilos said. “We’ve had so few capital cases the judges are just inexperienced.”

Gamer acknowledged that San Diego judges have some learning to do about handling defense costs in capital cases. “It’s a very complicated area and it’s an area we don’t deal with very frequently, so we’re feeling our way,” she said.

But Gamer insisted the courts have no desire to interfere in the proper defense of the accused.

“All we’re saying is we wanted a greater sense of planning--that we wanted to know, not what their strategies are or how they were going to handle the case, but what it was going to cost and if they’d thought it through,” she said.

“You don’t want to be in the position of denying the defendant due process. But that doesn’t mean every wish list has to be granted.”