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An appellate attorney for a Utah death row inmate is asking the state's highest court to follow through on a promise made nearly a decade ago: The justices said they would reverse death penalty convictions if inmates couldn't get an adequate defense.
The time is now, attorney Samuel Newton wrote in a recent motion in the appeal for Douglas Anderson Lovell, who in 2015 was sentenced to be executed for killing 39-year-old Joyce Yost in 1985 to keep her from testifying that he had previously raped her.
Newton, who is based in Montana, said that defense attorneys are not being given enough money to support thorough death penalty case reviews and in the cases for two Utah death row inmates Newton represents, he said he has had trouble getting paid.
Newton points to a 2008 Utah Supreme Court opinion for death row inmate Michael Anthony Archuleta in which the high court expressed concern that there was a diminishing pool of competent attorneys to work on capital cases. The justices wrote then that if qualified attorneys could not be found, the court might be forced to overturn death penalties and send the cases back to district court for imposition of life-without-parole sentences.
"This court should end the punishment [of execution] in this state once and for all," Newton wrote in his motion on behalf of Lovell.
Newton also laments in the motion a financial cap that Weber County officials have put on him to represent Lovell at an upcoming evidentiary hearing, where he is expected to question witnesses over several days about what work Lovell's trial attorney did on the case and whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting what bishops who worked with Lovell at the prison could say on the stand.
Newton says the hearing will require hundreds of hours of investigation and preparation, which he estimates will cost more than $37,000. The county, however, has only authorized $15,000, up to this point. County officials also have expressed concern that Newton was overbilling, he wrote, and said he spoke to Lovell too frequently.
County officials indicated in an email to Newton that if his billing practices don't change, they will have to find someone else for future appeals.
"That's the bind," Newton said in a recent interview. "Do I represent my client zealously like I'm constitutionally required to do? Or do I tread lightly so I don't lose my livelihood?"
Lawyers for Weber County wrote in court papers that the county is open to requests for additional funding in Lovell's case, and said that while Newton continues to be paid, he is "not entitled to an open checkbook."
But Newton said he has already lost tens of thousands of dollars representing Lovell, 59, and another death row inmate, 61-year-old Floyd Eugene Maestas, who was sentenced to be executed for stomping to death 72-year-old Donna Lou Bott during a burglary at her Salt Lake City in 2004.
The financial burden has caused him stress-related heart problems, Newton said, to the point where he asked to be removed from the Maestas case a request that lawyers with the Utah attorney general's office opposed because it would cause further delays in the case. A judge has denied Newton's request. State attorneys, however, have asked that Newton be removed from Lovell's case because of his health concerns.
The attorney general's office declined to comment for this story.
Newton is not the first attorney to raise concerns about payment in Utah death penalty appeals. A decade ago, as an appeal for death row inmate Ralph Menzies was underway, no qualified attorneys would take the case for the amount of money offered. It got to the point where a judge briefly appointed defense attorney Richard Mauro to represent Menzies, though the lawyer said he took the case unwillingly.
In an amicus brief filed by the Utah Association of Criminal Defense Lawyers in Menzies' case in 2007, several well-known defense attorneys wrote affidavits detailing the financial difficulties they encountered by accepting death penalty appeals. One lawyer wrote that his final hourly wage came to under $17 an hour, though he normally bills at a rate about ten times higher than that. Another said he made $19 an hour representing a death row inmate in a state appeal.
Some attorneys said they paid for expenses out of pocket and were never reimbursed. And one attorney wrote that he left private practice after representing a death row inmate because the costs had left his practice "in shambles."
Mauro said recently that it is especially difficult for a private practitioner to take on a weighty death penalty appeal, as opposed to having the support and resources of a law firm. He said that when he worked in private practice, he only willingly took on one state appeal.
"They were too difficult to do," Mauro told The Tribune. "Too time consuming. If you are doing the work the way it's supposed to be done and trying to keep the lights on and run the copy machine it's really not a feasible thing to do."
Back in 2008, when Mauro was appointed to represent Menzies, the state's Division of Finance capped the pay for attorneys in death-penalty appeals at $37,000. Now, that cap has been increased to $60,000, and an appellate attorney also has the option to ask for more funding if a judge determines there is "sufficient cause." But Newton said he has exceeded that amount already in both Lovell's and Maestas' appeals.
Robert Dunham, executive director for the national non-profit organization Death Penalty Information Center, said underfunding for defense in capital cases happens in every state where the death penalty is used especially in places where counties are expected to foot the bill, as in Utah.
When county budgets are tight, Dunham said, officials generally want to spend money earmarked for public safety on police and fire services, not on defense lawyers and experts for those accused of capital crimes.
"Underfunding defense lawyers is bad for the criminal justice system," Dunham said. "Not just because it risks unfair and unconstitutional trials, but because it costs taxpayers more in the long-run when the cases have to be re-done."
There are nine men on Utah's death row. Maestas was sentenced to be executed in 2008, and Lovell was given the death penalty in 2015 after a retrial. They are the most recent inmates to receive death sentences.
They are the only two death row inmates who have pending appeals solely at the state level; the remaining seven have various appeals pending in state and federal court.
It is not apparent from a review of Utah death penalty cases filed in U.S. District Court that funding issues are being raised by federal defenders.
The next death penalty trial is scheduled for November, where a jury will decide whether 36-year-old Steven Crutcher should be executed for killing his cell mate, 62-year-old Roland Cardona-Gueton, at the Gunnison prison in 2013. Crutcher pleaded guilty to aggravated murder last May, so the jurors at his trial will not be asked to determine guilt, only what punishment he should face.
Legislative fiscal analysts estimated in 2012 that it costs an additional $1.6 million to handle all the appeals and costs of a death sentence over 20 years, compared to a sentence of life without parole.
During the last legislative session, lawmakers considered studying the costs of the death penalty more in-depth but the bill never came up for a final Senate vote. State lawmakers came close to abolishing capital punishment altogether in 2016, but the bill never reached the House floor before the midnight deadline on the last night of the session.