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Defending sniper suspects costs Md.

Virginia pays larger part of $1.3 million in legal fees; 'A constitutional responsibility'

By Stephen Kiehl and Kimberly A.C. Wilson

Sun Staff

December 14, 2003

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The cost of defending John Allen Muhammad and Lee Boyd Malvo has soared past $1 million -- a sum that has been partially borne by Maryland taxpayers even though the sniper case defendants faced trial in Virginia courtrooms on Virginia murder charges.

The Maryland public defender has paid at least $44,000 to mental health experts who testified last week in Malvo's defense, and the state has also paid an undisclosed amount to a mental health expert for Muhammad. The fees are part of defenses that have totaled $1.3 million through Nov. 19.

For indigent criminal defendants -- those who cannot afford a defense -- it's highly unusual to be provided with the battalion of lawyers and experts that has represented Malvo and Muhammad. Malvo has five lawyers and eight mental health experts, including one who specializes in child soldiers in Africa.

Public defenders say it would be irresponsible to provide the sniper suspects with anything less, noting the severity of the charges and the small army of prosecutors and investigators aligned against them, including Attorney General John Ashcroft.

A jury sentenced Muhammad to death last month. Malvo could face the death penalty if he is convicted.

"People tend to forget that between arrest and execution, we have something called a trial," said Stephen E. Harris, the Maryland public defender. "It has to be somewhat fair. It has to be somewhat even."

His office hired mental health experts to evaluate Muhammad and Malvo shortly after their arrest Oct. 24 last year. Even though he soon learned that both suspects would be tried in Virginia, Harris said his office had to assume that there would be Maryland trials and prepare for that possibility.

'Best practice'

"It's the best practice to get mental health experts in a case as soon as you can, so you can know what their mental health is now rather than two years later," Harris said. "His mental condition could deteriorate while he's locked up, or he could improve."

Some public officials wonder why Maryland should bear such expenses when prosecutors here are uncertain whether they will ever present the case to a jury. The officials also note that the investigation leading to the arrests has cost Maryland taxpayers several million dollars.

"It's very questionable to me that we would be spending money for the defense when there's no trial in Maryland and we don't know if there ever will be," said Montgomery County Executive Douglas M. Duncan, in whose county six of the 10 sniper killings took place. "Once there's a trial in Maryland, then it's appropriate. But until then, we should not be spending that money."

Through Nov. 19, the Muhammad defense team had submitted expenses totaling $556,855, compared with $770,305 for Malvo's defense. Those figures cover everything -- attorneys' fees, attorneys' staff, travel, investigators, mental health experts and lodging at the trial sites in Chesapeake and Virginia Beach.

Muhammad's mental health experts have spent more than 100 hours evaluating him over the past year, at a cost of tens of thousands of dollars, but none of them testified. Muhammad refused to meet with the prosecution's psychologist, so the trial judge barred the defense experts from testifying.

Expecting a squawk



"We were trying to keep the costs down because we knew everybody would squawk about it," said Muhammad's lead defense attorney, Peter D. Greenspun. He said that several mental health experts worked for free and that the defense team enlisted unpaid interns from George Mason University to conduct hundreds of hours of research.

Greenspun also said that Virginia's strict rules about what information prosecutors are required to turn over to defense attorneys meant that defense investigators spent untold hours tracking down the phone numbers and addresses of people the prosecution had found earlier.

"There's really an absurdity to that," Greenspun said. "In that $500,000 is a huge, huge investigative effort."

Malvo's defense team also conducted a substantial investigation and mental health evaluation. It hired a forensic social worker to visit Malvo's relatives and friends in Antigua and Jamaica, where he was raised, to prepare a videotape aimed at reacquainting the teen-ager with his roots.

That social worker was among a parade of mental health experts who testified for Malvo in the past week. Eight took the stand, including two who had never met Malvo but had areas of expertise that defense attorneys thought were relevant. One specialized in cults, another in child soldiers.

Prosecutors objected to that testimony as irrelevant. "There is no war in this case," said lead prosecutor Robert F. Horan Jr. "These were innocent civilians slaughtered on the street."

Malvo's attorneys, who have been placed under a gag order by the judge, did not return phone calls last week. Four of his lawyers are being paid by the state -- the Virginia Supreme Court recommends a rate of $125 per hour -- and one is being paid separately by a nonprofit group.

The attorneys for Muhammad and Malvo are in private practice, where they most likely charge much more than $125 an hour. And the lawyers say that once high-profile, time-consuming cases such as the sniper trial are over, their practices are all but decimated because their clients have sought legal counsel elsewhere.

If Muhammad and Malvo ever face trial in Maryland, their attorneys will not be nearly as well compensated. Muhammad would be represented by the staff of the Montgomery County public defender's office. Lawyers in private practice would be appointed to take Malvo's case, but they would be paid Maryland's set rate for court-appointed lawyers, $30 an hour for preparation time and $35 an hour for court time.

Harris, the state's public defender, declined to say how much the state is paying to attorneys or mental health experts in the sniper cases. He said such information could be used against the defendants by prosecutors.

"I have a constitutional responsibility to my clients," Harris said. "At this point, in a pending case, that supersedes my responsibilities as a public official."

Harris also said that he lives within his budget. The state provides his office with $60 million a year to pay the salaries of 487 public defenders across the state and for any investigative or mental health work they require for their cases. Last year, those public defenders represented 177,000 clients.

In discussing the costs of trials, defense attorneys often say that poor compensation for court-appointed attorneys can make it impossible to put on a solid case. Virginia does not limit costs in death penalty cases. The state pays a flat rate of $1,096 to attorneys handling felony cases punishable by 20 years to life in prison.

"It's ridiculous," said James Hingeley, the public defender in Charlottesville, Va. "Once you pay the overhead to keep your office open, you end up paying money to help the state meet its constitutional obligation to provide counsel to indigent defendants."

Most poor defendants don't receive the same barrage of legal representation that the sniper suspects have, but defense lawyers say the added costs are warranted because prosecutors are sparing no expense in their quest for death sentences. Prosecutors hired $500-an-hour psychologist Park Dietz to evaluate Muhammad, but the sniper suspect refused to meet with him.

"These are exceptional cases, and the prosecution has paid an exceptional amount of money [to its experts], so it's only reasonable to have the same kind of expense on the defense side," Hingeley said. "I don't think it's out of line at all."

Right to a defense

Some relatives of the sniper victims also think the defense is appropriate. Vicki Snider, whose brother, James L. "Sonny" Buchanan Jr., was gunned down while mowing the lawn at a Rockville car dealership, said she didn't worry about what it cost to defend the man convicted of masterminding the shootings, or his admitted accomplice.

"Do I think it's exorbitant?" Snider said. "You bet. But whatever my opinion is about it, they have a right to a legal defense. Just imagine what it will cost if it keeps being tried again and again."

The state's attorney in Montgomery County, Douglas F. Gansler, would like to try both defendants on his turf, and he said the costs would be minimal, given the groundwork that has been done. He said mental health experts hired by Virginia prosecutors would be at his disposal. But he said he has not contributed any money to the prosecutions in Virginia.

"We in Montgomery County have paid the lion's share of the costs already," Gansler said. "It's hard to rationalize or justify why any expenses of the prosecution or defense in another jurisdiction are being paid by Maryland authorities."