Accounting for Murder Trial Costs : State Bill Would Require Reporting of Defense Expenses

Prosecutors believe that David Lucas murdered John Swanke’s daughter Anne, but Swanke says the state’s ponderous criminal justice system is killing him now, a little bit every day.

Lucas was charged more than three years ago in the brutal slayings of Anne Swanke and five others. Yet with proceedings bogged down by legal battles over evidence, his trial for the Swanke killing has not even begun.

“As long as this case is in the courts, we are unable to bury the child with grace,” Swanke said in an interview. “We’re reminded she’s dead. We’re reminded she’s been murdered.”

Swanke, an El Cajon resident, blames the delays on a state law that governs the disbursement of money to publicly funded lawyers who represent accused murderers unable to pay for their own defense.

The law, which applies only in cases where the death penalty is possible, allows defense attorneys to delay accounting publicly for the money they spend until after the completion of the trial and all possible appeals. In California, where appeals in death penalty cases end only with execution or acquittal, and where no one has been sent to the gas chamber since 1967, that means the public has no way to learn how attorneys are spending millions of dollars allocated on behalf of their clients.

Case-by-Case Accounting

Because of the way the law is written, in fact, it is impossible to know even the total amount of money the lawyers are spending on their clients’ cases.

But that may change.

Swanke was in Sacramento this week to support a bill written by Assemblyman Larry Stirling that would require an annual, case-by-case accounting of the costs to the taxpayers of defending accused murderers who might face the death penalty. Swanke contends the bill would cut down on the number of expert witnesses called to testify in major cases.

Stirling’s bill cleared an important hurdle Wednesday when it was approved by the Assembly Public Safety Committee, of which he is chairman. The committee, which is controlled by a majority of Democrats, usually rejects legislation hostile to the rights of defendants in criminal cases.

This time, however, the panel voted 5-0 to move the measure to the Assembly floor, where it is expected to pass, despite opposition from defense attorneys and civil rights organizations, who contend that the legislation is unnecessary as well as unfair to the defendants.

“I don’t think anybody should have a blank check at the public trough,” Stirling, a San Diego Republican, said in an interview. “What they (defense attorneys) are trying to do is exploit Americans’ basic penchant for fair play and the willingness to go the extra mile to ensure someone accused of a capital crime can get a fair hearing.

“They’ve said ‘give us a blank check,’ and they’ve gotten it.”

Must Receive Court Approval

Defense attorneys must receive court approval each time they request funds for extra consultants, experts, investigators or equipment. But Stirling believes that judges give their approval freely out of fear that rejecting requests for assistance could lead to reversal of a conviction on appeal.

He points out that since 1978, the state’s share of the costs of defending all indigents at the trial level has risen from about $1.2 million to $7 million, and the state pays only a small portion of the costs borne by counties. At the appellate level, where the state bears a much higher proportion of the costs, about $27 million will be spent this year on publicly funded attorneys, according to a report by Legislative Analyst Elizabeth Hill.

San Diego County will probably spend more than $19 million this year providing publicly funded legal counsel to indigents in all kinds of cases, according to Phil Harry, acting director of the county’s Office of Defender Services.

Of that amount, about $3 million is budgeted for the defense of at least 10 people charged with murder who could face the death penalty, Harry said. In addition to Lucas, the county’s taxpayers are currently funding legal representation for these defendants, who could be executed if convicted:

Kevin Watkins, one of five former Marines charged in connection with the August, 1984, murder of Marine sergeant Carlo Troiani, who was stationed at Camp Pendleton. Troiani’s wife Laura was convicted last year of first-degree murder in the case after a lengthy trial that was believed to be one of the most expensive in county history, and four other Marines have since pleaded guilty to first-degree murder for helping her kill her husband.

Joselito Cinco, now on trial for the fatal shooting of San Diego police officers Timothy Ruopp and Kimberly Tonahill. Ruopp and Tonahill were shot and killed Sept. 14, 1984, on the edge of Balboa Park after they stopped to question Cinco and several others who were drinking in a car late at night.

Richard Gonzalez Samayoa, charged in the killing of 33-year-old Nelia Silva and her 2-year-old daughter, Katherine. Rolando B. Silva, a Navy petty officer 1st class, found his wife and daughter beaten to death when he returned home from his Navy job on Dec. 18, 1985.

Ronaldo Ayala, Hector Ayala and Joseph Moreno, charged with the April, 1985, shooting of Ernesto Dominguez, 30; Marco Zamora-Villa, 31, and Jose Rositas, 24. The three were found bound and shot in the head in an East San Diego radiator shop.

Carlos Fonseca, accused in the December, 1986, slayings of Rosa Partida Medina, 25; Enrique Beltran, 25; Miguel Martinez Vasquez, 20, and Augustine Farfan, 21, in the College Grove area.

Dean Phillip Carter, accused in the 1984 strangulation of Janette Cullins, 25, in Pacific Beach. Cullins was found dead in her closet in April, 1984.

Billy Ray Waldon, accused of committing three murders in 1985. Waldon is charged with fatally shooting Dawn Ellermann, 43, on Dec. 7, 1985, and then setting fire to her Del Mar home. Ellermann’s 13-year-old daughter Erin died in the fire. Waldon is also charged in the Dec. 20, 1985, fatal shooting of Charles Wells, 59, who was shot and killed while Waldon was being chased by police.

The county pays the lead attorneys in these cases $75 an hour for their work. If they want to hire assistants or bring in experts, the attorneys must file an application with a Superior Court judge who is not handling their client’s case, explaining who they want to hire and why they need the help.

Second attorneys are paid $60 an hour, while investigators earn about $25 an hour. Consultants--forensics specialists, blood experts and medical examiners, among others--are often paid $125 an hour or more, plus travel expenses, for their work.

The applications for additional funds--and even the fact that they have been filed--are confidential, on the theory that their disclosure might jeopardize the defense by alerting prosecutors to the attorneys’ strategy.

Secrecy Has Bred Rumor Mill

That secrecy has bred a rumor mill among prosecutors, survivors of victims and conservative legislators about what is being paid for with the public’s money. Anecdotes about lawyers buying computers, office furniture and the like--lawyers and county officials say any such purchases remain the county’s property--have in turn led to increased pressure to find a way to reveal details about the expenditures.

Stirling’s bill, when first introduced, would have required immediate public disclosure of the full applications and the accompanying approval from the judges. That provision was fought fiercely by defense attorneys and civil libertarians and was removed by the Assembly Public Safety Committee.

Stirling agreed instead to limit the annual public accounting to the total amount spent on each case, without a breakdown in detail. And for good measure, he also required that prosecutors disclose their costs as well, although that information is already available to anyone who wants to burrow through county records to compile it.

The defense bar still opposes the bill. While no longer as concerned with the threat of having their legal strategies exposed, attorneys say that they believe the measure’s true intent is to create a public outcry against defense costs and the judges who approve them.

“My real concern is that there are going to be all sorts of probably unfair or ill-informed comparisons between ‘case A’ costing such and such and ‘case B’ costing this or that,” said Elisabeth Semel, a San Diego defense attorney who is vice president of California Attorneys for Criminal Justice. “There will be accusations leveled at lawyers for spending too much by a press that doesn’t appreciate all the intricacies involved in a complex case.”

Do Not Have ‘Blank Check’

Semel and others said defense attorneys do not have a “blank check,” as Stirling alleges, because their requests are seriously reviewed by judges.

“Sometimes they refuse you,” she said. “Sometimes they say ‘no, this is not reasonable. This costs too much. Or get it for cheaper, or don’t do it. Can’t you get away without it?’ They (judges) are as concerned as anybody that the money be spent reasonably.”

Attorney Alex Landon, who is one of several lawyers representing accused killer Lucas, would not disclose how much has been spent on the Lucas defense to date. But he said all the money spent has been necessary.

Landon said much of the delay in the Lucas case is because of the fact that the defendant was to have two trials, but shortly after the first trial began, prosecutors moved to consolidate the two into one. Several months have since been spent in arguments over which evidence to allow into the trial if it is consolidated, Landon said.

“The defense has responded to those things raised by the prosecution, and properly so,” Landon said. “It is a complex case. It is a serious case, the most serious kind. It requires the kind of response or resources that the prosecution has put into the case. They have raised certain evidence. Competent representation requires the type of expenditures the defense has had to make.”

Public’s Right Outweighed

Assemblyman Terry Friedman (D-Tarzana), who opposes Stirling’s bill, said the public’s right to see how its taxes are being spent is outweighed in this instance by the need for the fairest possible trial for the accused. He said annual disclosure of the costs may well lead to pressure on judges to curtail defendants’ expenses, and that could harm their representation.

“We’d better make sure in our society that we don’t take someone’s life without ensuring that a person has good, quality legal representation,” Friedman said. “We have to look at not just the bill in front of us but the larger principle. In isolation, it looks fine. But when you put it up against the principle that capital defendants have adequate representation--that’s more compelling.”

But Stirling contends that the current system has gone too far on behalf of defendants. He said the quest for a fair trial has deteriorated into “money grubbing.”

“We could spend an unlimited amount of funds on every case, on each side,” Stirling said. “But at a certain point, you make a decision that that’s a fair trial. A fair trial is what the Constitution requires, not a perfect trial.”