WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Monday, October 03, 2016

THE COSTS OF DEATH PENALTY DEFENSE

According to the Herald, the costs of defending a death penalty defense in Miami are high and it takes a real long time for the cases to go to trial or be resolved.

Mr. Abe Laeser was interviewed and he opined that defense attorneys have a financial incentive to drag the case out, which is one reason why the cases take so long to resolve. He seems to think this is a problem.

We beg to differ. 

This is Rumpole's defense of defense attorneys having a financial incentive on a case.

First, what would be the opposite of an attorney having a financial incentive in a case? It would be paying an attorney a flat fee. What would that do? No matter the fee- even if it were a million dollars per case, it would create the economic incentive to NOT explore every issue, challenge every fact, look for every possible witness and consider every possible defense.
Who wants an attorney like that? Only prosecutors.

The death penalty in this county is a national shame. With all the work and supposed expertise of detectives, prosecutors, judges, and defense attorneys- courts still send INNOCENT men and women to death row at the fairly consistent average of 5 percent. Five people out of every hundred sentenced to death are INNOCENT.

So what we want is every attorney to have the greatest possible financial incentive to work on the case as hard as possible. The more they work, the more they earn. It works in civil law, why not criminal law? The more they work, the more possible issues and defenses are uncovered. The more the defense attorney works, the harder it is for a prosecutor to obtain a death sentence.

Far from being a problem in death penalty cases, the current method of paying criminal defense attorneys (other than having an hourly rate akin to a plumber and not a skilled professional) is one of the only things standing between society's desire for vengeance and an innocent person being executed.

But what about those cases where "we know he did it"? 

Ask Richard Jewell about what happens when everyone in the country "knows" you did it. (You can't actually. He died of a heart attack.)

Ask the five juveniles (four black, one Hispanic) who were convicted of raping the central park jogger what happens when everyone "knows" you did it and you are sentenced to prison and your case is affirmed on appeal. Ask them about being innocent in the face of everyone "knowing" you did it.

Keep the incentives. Just pay the lawyers more.

See you in court.

10 comments:

Anonymous said...

Let me say that Abe is a total player hater. He has always has been a jealous guy. The last case he tried he got in reversed with an inappropriate argument and now the man is off death row. So you can chalk the extra tax payer dollars to his over zealousness. Next I turn to Terry. He is my new idol earning 5 million. The truth is he is worth 10 million. Where do I sign up?

Anonymous said...

The article exposes how some lawyers milk the cases. It goes like this. Lawyer sets three of his court appointed cases for brief motions on a Wednesday morning and then bills three hours for each case even though he or she was there from 9-10: 30.
It's called theft.

Anonymous said...

3k plus hours per year. Nothing bad.

Anonymous said...

Former ASA here:

Abe, we love you, but you were a career government worker who never had to run a law practice, write a rent check, write a payroll check or buy health insurance. Explain to me how $100 per can keep a law firm afloat, much less be lucrative. Hint: you wont.

But the death penalty is going the way of the dodo bird. 36 out of 50 states either dont have the death penalty or they have the death penalty but haven't executed anyone in 5 years. The number will be increasing in the future and there is virtually no way to stop it. The death penalty is just revenge. I'd say life without possibility of parole is a pretty harsh punishment. But if prosecutors want to have the revenge penalty, then it will take funds away from other criminal justice programs which could benefit society as a whole much more than executing some shithead.

I'm no bleeding heart liberal on criminal justice issues, but this one is just stupid.

abe laeser said...

Not that it made it into print, but if you pay $200k as a flat fee, with $50K for expenses -- with the right to petition for more based upon an open showing of good cause, who is harmed?

I can find great lawyers who are willing to put in the 2,000 hours in one year [without doing any other work], and close out cases in 12 months and not 10 years.

No one gets short changed, but the motive to delay is gone!

Anonymous said...

Where do you sign up? Yeah good luck with that!!!


An issue is why they do not expand the number of lawyers that are on the death wheel to handle these cases. The lawyers currently on the panel have done nothing at all to groom the next generation of death
lawyers. The lawyers on the panel will mostly retire in the next 15 years and there will be no qualified lawyers to handle these cases if the system continues the way it is. They give each other the cases and refuse to let qualified second chair lawyers assist them. There are several lawyers who are only allowed to sit as 2nd chair, but we do not get the cases. And then the panel of lawyers who decide whether we qualify for 1st chair uses the fact that we have never gone to trial on a death case against us in our application to the death wheel.

The lawyers who do qualify for 1st chair get to pick their 2nd chair
lawyer. And they only pick each other as 2d chair. They are open about the reason. A lawyer who only qualifies as 2nd chair cannot give them a case (i.e. give them a big bucks appointment). So how then are younger lawyers who want to handle death penalty cases supposed to get into the business? There needs to be some intervention by the courts. The article claims that the committee is trying to tinker with the rules in order to get more lawyers involved. Total BS. The rules already allow for the committee to add lawyers to the death wheel, but out of self-interest they will not do it.

A couple of rules changes should be - limit the number of death cases each lawyer can have at any given time to 5, allow qualified lawyers who have not completed a death case trial to start getting appointments with the condition that they appoint a 2nd chair lawyer that has completed a death case trial and require that if any death case goes to trial that the lawyers invite one lawyer who needs a death case to participate.

Anonymous said...

2:19, These guys have no overhead, no secretary or paralegal. They spend their entire legal lives living in the REG. No civil cases or larger 7 figure verdicts. They can bill 6-8 hours a day. That's 4k a week X 50 weeks or 200k a year for one case only. If they have 5 of these that's 1mm a year. Not bad for bottom feeders

Anonymous said...

the asshole death penalty lawyers overbilled so much it forced the state to enact the office of conflict counsel system and put hundreds of lawyers out of business, no more 2 cases a month that you could at least live on in a state that added 5 unnnecessary law schools and had 2400 take the last bar exam. thanks the few, the proud, the arrogant-you know who you are.

Anonymous said...

6:26AM--100% on point. And since these lawyers have so many death penalty cases, they don't move any individual case efficiently. "Oh judge, I can't take depositions/go to trial right now because I'm preparing for this other death penalty case." Next thing you know, five years have gone by. It's a racket.

Huey Freeman said...

The Death Penalty is an all around disgrace. Defense attorney's over bill because they know they have been given a blank check (some not all). The State overcharges/seeks an indictment only to use as a bargaining chip knowing they do not intend to seek the DP. Innocent people are convicted and languish for decades only to be later exonerated, while the true culprit lives life free of worry. The tax-payers spend millions on a system and get nothing in return (I've yet to hear the "I would kill you, but they might seek the DP, so I'll just maim you" rationale.) We are supposed to be a leader of human rights, yet we are one of the only "advanced" nations that still have a death penalty, because the only true way to stop people from killing, is to have other people kill them after they have already killed someone.

I'm all for abolishing the DP, but the one unintended consequence I could think of is that the high level of appellate review will no longer exist because the government will no longer be seeking to take your liberty and life. Despite this I still believe the DP has to go.