HOUSE COMMITTEE ON JUDICIARY

 

 

February 14, 2003   Hearing Room 357

1:00 P.M. Tapes  38 - 40

 

MEMBERS PRESENT:            Rep. Max Williams, Chair

Rep. Robert Ackerman, Vice Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Jeff Barker

Rep. Jerry Krummel

Rep. Greg Macpherson

Rep. Floyd Prozanski

Rep. Lane Shetterly

 

MEMBER EXCUSED:            Rep. Bob Jenson

 

STAFF PRESENT:                  Bill Taylor, Counsel

Nancy Massee, Committee Assistant

 

MEASURE/ISSUES HEARD:            Informational Meeting

                                                Extraordinary Expenses Associated

                                                  with Indigent Defense

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

Tape 38, A

006

Chair Williams

Opens meeting at 1:08 P.M. 

INFORMATIONAL MEETING

225

Ann Christian

Director, Indigent Defense Services Division, Office of the State Court Administrator. Submits Indigent Defense Account Payments Chart and describes differences in opinion on allowing scientific requests (EXHIBIT A).

 

Daniel Norris

Malheur County prosecutor.  Describes the McKnight case. Submits testimony and explains the reasons for disallowing DNA testing because of the cost and length of time passed from the crime until reporting of the crime (six months) plus the fact that the clothes had been washed many times during that period(EXHIBITS B & C).

235

Ann Christian

Explains why she allowed the test at the cost of over $700.

240

Rep. Prozanski

Asks when this took place.

245

Norris

Answers in 2001.  There was a lapse of six months from the time of the rape until it was reported.

247

Vice Chair Anderson

Asks what the DA expenses are; does the defendant have access to all the same information?

302

Christian

Answers the law permits defense attorneys to use the state crime lab.

297

Vice Chair Anderson

Asks if the prosecutor has access to all the information that the defense attorney does.

301

Norris

Answers, no, they do not unless the expert witness is on the list.

306

Vice Chair Ackerman

Asks about the supplemental affidavit, did it show representation of counsel or to the expert witness that it was probable that DNA would show up.

317

Christian

Answers he had spoken with Intermountain Forensic Labs.

329

Rep. Shetterly

Asks about the DNA evidence.

362

Norris

Answers the defendant was convicted of rape and sodomy. It was no longer an alleged crime. Prosecutors want DNA.  There was no reasonable chance to obtain the DNA in this case. However, the defense sought DNA at the state’s expense.

350

Christian

Explains a request would be for the purpose of reaching a resolution in the case rather than a jury trial. States there were ten charges and he was convicted of three.  Negotiated pleas save money compared to jury trials.

397

Rep. Shetterly

Mentions that polygraph examinations  save money compared to going to trial.

TAPE 39, A

010

Christian

Explains that the contract with Intermountain Forensic is $120 per test.  The private labs have hourly rates from $250 to $350 per hour. The cost of $729 in this case included time on the phone with the defense attorney and other services.  There were additional reports that cost $90 per hour under the contract.

040

Steve Dingle

Marion County Prosecutor in Cox case.  Cox was convicted of aggravated murder and sentenced to death. He stabbed a fellow inmate at Oregon State Penitentiary. Describes Dr. Cunningham’s testimony in the defense. He estimated that his charge would be $15,000 to $20,000. The DA’s total allowance would be $8,000 for examination of the defendant.  Describes how lack of resources affects  handling of testimony.

070

Chair Williams

Asks what the witnesses cost was and why was he testifying.

078

Dingle

Describes Dr. Cunningham’s presentations as ineffective.

 

Chair Williams

Asks what the objection to the cost was.

090

Dingle

Describes examining defendant, consulting, and testifying costing up to $4,000.  Cunningham got around $20,000. The majority of his income is from testifying at capital defense cases. His fees run from $8,000 to $34,000.

120

Steve Gorham

Criminal Defense attorney since 1976.  Indigent defense contractor in Marion County Submits testimony and explains that he authorizes indigent defense extraordinary expenses (EXHIBIT D). Discusses how he is very careful about expenses.  Indigent expense funds are very accountable. 

178

Gorham

Refers to the Cox case.  Explains access to the state laboratory and what assistance is available to the defense. Explains the importance of having an expert witness.  Refers to Judge Dickey’s opinion.

224

Chair Williams

Asks Mr. Dingle if he used an expert witness in the penalty phase.

230

Dingle

Answers that the defendant had had a dangerous offender evaluation in earlier years. The expert witness was in Salem and accessible as were the records. He charged about $150 only because he had already examined the person.

257

Gorham

Says Dr. Cunningham charged less than $20,000 for his work.

265

Vice Chair Anderson

Asks how to keep costs down in these cases.

280

Gorham

Answers “do away with the death penalty.”  In Marion County since 1991, the average aggravated murder death penalty case cost about $60,000 for attorney fees; $21,000 for expert fees, for a total of about $81,000 average cost. In regular cases, the cost is around $14,000 on average per murder case.

300

Dingle

Defers to Harcleroad testimony regarding costs.

331

Stephanie Tuttle

Prosecutor in Marion County for nine years. Describes the Miles case.  Explains why it took two years to get to the case due to the defense’s attempt to prove that the defendant was under the influence of Paxcil when she committed this crime. Explains how defense searched for an expert witness.  Explains the defendant’s blood tests that showed no Paxcil derivatives.

TAPE 38, B

015

Tuttle

Continues relating how the defense spent a lot of time tracking down an expert witness. States the delay caused added expense in keeping the defendant in jail.

030

Gorham

Replies that he authorized the tests in this case. Describes tests that would be needed for Paxcil presence in defendant’s system at time of the murder. The defendant had no toxicology reports indicating that blood or urine was ever tested for Paxcil metabolites.  

072

Rep. Macpherson

Asks if there should be parity in the expenses between defense and prosecution.

090

Gorham

Supports the parity idea.  Prosecution has much more resources than the defense in most cases. Death penalty cases are different.

095

Tuttle

Disagrees as to whom has the more resources in these cases.  Does not agree with parity.  Supports keeping costs reasonable.

108

Bill Taylor

Committee Counsel. Gives example of Paxcil disclosure. Can that be brought up after conviction?

123

Gorham

Answers, absolutely, on the grounds that the defense attorney did not zealously represent the defendant and was ineffective.

118

Tuttle

States that the defendant was tested by blood and urine analysis and marijuana evidence was found but not Paxcil.

132

Vice Chair Anderson

Asks can a defendant be brought back if there was not sufficient funds to sufficiently represent him.

156

Joshua Marquis

District Attorney for Clatsop County since 1994 (EXHIBIT E).  Relates the Garner case. Defense was by Mr. Cross and Katherine Correll. Garner is on appeal.  Discusses issues:  psychologist from California, Mr. Lakia, billed over $30,000; another witness who had been a teacher and knew the defendant from his previous jail term was paid to testify; Judge Brownhill allowed expenses.  An expenditure for Godiva chocolates was questioned (EXHIBIT F). The two years delay was due to challenges to the jury list.      

263

Cross

Defense Counsel for Mr. Garner. Describes the California psychologist, Mr.Lakia, as a premier psychologist and an expert forensic witness in capital cases. Explains choices of other witnesses and explains why they were needed.   

400

Cross

Explains the chocolate issue. Discusses why it took three years to go to trial.

TAPE 39, B

018

Cross

Continues explaining the costs in Garner.

062

Chair Williams

Asks for counsel in Barone and Lloyd to submit written material.

011

Doug Harcleroad

Lane County DA. Oregon District Attorneys Association. Discusses the fundamental policy issue which may conflict with the idea of constitutionally representing indigent defendants adequately or better. To raise standards, fiscal accountability is critical. There needs to be written guidelines for indigent defense funding. For example, not bringing in out-of-state experts when there are in-state experts available. Hourly rates could be established. Discusses the need for additional funds.  

145

Ross Shepard

Director, Public Defender Services of Lane County. Says the testimony does not indicate consistent abuse of the indigent defense cases. There are individual cases that draw differences of opinion.

149

Chair Williams

Refers to a “substantial right” under the Court of Appeals.

155

Harcleroad

Suggests disclosure of financial condition of the case should be looked at.  

187

Shepard

States there is no pattern of abuse in the indigent defense services. Lack of adequate resources is evident. Statute is not considered at this time. Commission should set its own standards and methods of review.  Agrees that the fees of $40 per hour are inadequate.  Most hourly fees are obsolete.

280

Harcleroad

States that the amount of spending can be disclosed.  States that the public must know how the money is spent. There needs to be disclosure of public money spending.

320

Rep. Shetterly

Mentions that the system, in good times, there are irritants but in down times these become significant to budgets. Suggests resources for the prosecution should be brought to equal the defense.

373

Rep. Barker

Asks about post-trial disclosure.

387

Shepard

Responds it is not impossible.

414

Vice Chair Ackerman

Comments on importance of district attorney office administration.

430

Rep. Krummel

Asks about contracts for lawyers. Prosecutors have use of state resources such as Oregon State Police and other agencies.

TAPE 40, A

040

Chair Williams

Asks Ms. Christian to respond offline to Rep. Krummel on these questions.

044

Shepard

Responds that in theory the prosecution has all the government agencies to help. 

062

Harcleroad

Agrees there is not enough resource for the DA’s. Describes access to agencies for assistance.  The level of assistance is the question.

077

Christian

Explains disclosure of indigent defense accounts. 

122

Chair Williams

Thanks participants. Says discussion of issues has been useful.  Says the question is, what is constitutionally adequate defense? Oregon wants adequate and equal defense.

156

Chair Williams

Adjourns meeting at 3:03 P.M.

 

 

EXHIBIT SUMMARY

 

A – Informational, Indigent Defense Account Payments Chart, Ann Christian, 1 p

B – Informational, Letter, Daniel Norris, 2 pp

C – Informational, Affidavit of M. Rader, Daniel Norris, 3 pp

D – Informational, Written testimony and opinion of Judge Dickey, 15 pp

E – Informational, Written testimony with charts, Joshua Marquis, 13 pp

F – Informational, Written testimony, Katherine Correll, 1 p