An experimental program to curb the rising cost of court-appointed lawyers for indigent defendants is being assailed by some prominent criminal defense attorneys who contend that death penalty cases are being short-changed.
Under a program the Los Angeles County Bar Assn. plans to start next month, attorneys who wish to be assigned complex and protracted cases, including those involving capital crimes, must agree to fees ranging from $55 an hour for preparation time to $60 an hour for actual time in court.
"The fees are very, very low," said Paul Geragos, the attorney for Harry B. Sassounian, who was sentenced to life in prison without possibility of parole for the 1982 murder of a Turkish consul general. "Is it fair to have nickels and dimes as far as the defense is concerned when the prosecution has unlimited funds?"
"I personally think the fee schedule is totally inadequate. You live (death penalty) cases day and night," said Richard Plotin, one of several attorneys interviewed who does not plan to join the program.
The Bar Assn. is reviewing applications from more than 40 attorneys who want to be considered for the toughest and longest cases when the one-year pilot program--which is supposed to reduce the cost of court-appointed private felony defense by $500,000--gets under way.
At least 30 lawyers will be needed for the panel, criminal courts coordinator John Iverson and Bar spokeswoman Cindy A. Raisch estimate.
Some defense attorneys say they worry that the most experienced lawyers will follow the example of Plotin, Leslie H. Abramson, Albert DeBlanc Jr. and others and will not apply for the death penalty panel.
If that happens, they contend, the quality of representation will suffer, although they concede that requirements for the panel are stringent.
A reduction in quality could in turn lead to costly reversals, according to these critics.
"If you can get qualified people . . . you can eliminate reversals," said Joe Ingber, whose clients have included Vernon Butts, one of the so-called Freeway Killers. "You might as well do it right the first time and you will save literally hundreds of thousands of dollars."
Abramson, who is representing one of the defendants accused of killing a policeman in Chinatown in 1984, said: "If you allow incompetent lawyers to try death penalty cases, the worst that can happen is that innocent people will be gassed. The second worst is that the cases will have to be retried."
The executive officer of the Los Angeles Superior Court, Frank S. Zolin, said he approved the fees recommended by the Bar Assn. after comparing them with the rates paid to deputy district attorneys and public defenders, and the average cost for each case.
Zolin said the fee schedule allows judges to use discretion in making awards for court time spent on protracted cases--although not for preparation time--and said he expects them to augment the fees for long, highly publicized trials.
But he stressed that the program will not work if such awards become the rule.
"I believe we had a thorough discussion with the representatives of the Bar on that rate (for capital and protracted cases) and agreement was reached," Zolin said.
"If that rate is insufficient and it's appropriate to increase it, the obvious result is that the Bar panel program will not achieve the estimated savings."
Ingber and others are also critical of what he describes as the "god-awful disparity" between what the county pays private lawyers in civil cases involving money and property and what it is willing to pay for representation of people who face the gas chamber.
For example, the county hired private lawyers at $150 an hour to defend itself against an estimated $500-million worth of claims from Malibu homeowners whose homes were damaged in 1983 by massive rock slides, according to chief Asst. County Counsel Gerald F. Crump.
When former Coroner Thomas T. Noguchi contested his demotion and sought $1 million in damages from the county, private attorneys were hired at $110 an hour, Crump said.
Contending that "the going rate" for business litigation is as high as $250 an hour, Abramson complained that "life litigation comes on the cheap."
"What can I say? They're right," Zolin said. "If you look at what the county pays . . . attorneys that they hire to represent them on the civil side, you're going to see the rates are significantly higher than what we've paid criminal defense attorneys.
"I don't know if there's any justification. It's a matter of priorities."
Ironically, Ingber was one of the lawyers who developed the Bar Assn.'s fee schedule, and he is urging other lawyers to apply for the program despite their misgivings. He noted that the private Bar has no choice but to comply with the Board of Supervisors' insistence on trimming court costs, or it risks losing court appointments altogether.
The supervisors called for reducing costs after various abuses were uncovered, including an audit showing that three criminal defense attorneys had billed the county for a total of nearly $1 million during a 16-month period ending in 1983.
The Bar Assn.'s new Indigent Criminal Defense Appointments program will coexist with--and compete with--Alternate Defense Counsel, a group of lawyers who recently began handling felony cases in the downtown Criminal Courts building. During a 2-year operation in the San Fernando Valley, the Alternate Defense Counsel reduced annual expenses for representing impoverished defendants by 60%, county officials say.
It was the success of the defense counsel that put pressure on the county Bar to come up with a plan to cut fees.
Both the private Bar and the defense counsel will handle clients who cannot be represented by the Los Angeles County public defender's office because of a conflict of interest. Such conflicts occur in multiple-defendant cases.
Zolin said he expects the private Bar to handle about 1,000 such conflict cases--little more than half the total--during the coming year. The goal, he said, is to cut costs at least 10%.
Last year, Los Angeles County spent nearly $10.4 million on private lawyers for so-called felony conflicts cases, according to Zolin, with about $4 million of that going to cases handled downtown.
But the Alternate Defense Counsel will not take on death penalty cases, leaving the field open to the private Bar.
Under the Bar's experiment, attorneys can apply for any of four panels divided according to types of cases, with rates beginning at $45 for preparation time in the simplest cases. An administrator will assign cases on a rotating basis.
Each panel has its own set of requirements, with the highest grade limited to lawyers with, among other qualifications, 10 years' membership in the Bar and at least 40 felony cases and one death penalty case behind them.
Only those fees proposed for death penalty cases have attracted controversy.
Until now, individual judges have assigned cases and set the fees. Guidelines suggesting $50 an hour for court time and $35 to $40 an hour for preparation time have often been ignored, with some defense attorneys getting as much as $100 an hour.
Gerald Chaleff said he got $75 an hour for representing Hillside Strangler Angelo Buono, whose defense cost $368,417. But Chaleff said more than half his fee was absorbed by his overhead. Irked that judges will have no leeway in deciding fees for preparation time, he said he has not decided whether he wants to be on the death penalty panel.
"The (previous) fees were not astronomical," Chaleff said. "I don't think anyone understands what it means to someone--physically, emotionally--to do a case when a person's life is on the line."
Chaleff said he worries that the Bar panel's rates will discourage young lawyers from specializing in capital cases.
Zolin agreed that over time the fees might serve as a deterrent to attorneys.
"I don't think there's any short-term risk," he said. "I can see that maybe over a long period of time if there's a constant deterioration of the rates and constant pressure to keep costs down . . . you might see a reduction, a slow wearing away of the quality of attorneys (in death penalty cases)."