Lawyers are leery of capital cases

There are fewer and fewer lawyers eligible for appointment to capital cases.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- Long hours away from home and family, making the same money you were paid nearly 20 years ago.
Sweating bullets from stress and suffering public scorn for months at a time.
All because you want to keep an accused murderer alive.
Who wouldn't want a job like that?
Lawyers who represent indigent people in death-penalty murder cases say that's what their life is like. It's also why they aren't surprised that the list of lawyers willing to accept court appointments in those cases is shrinking fast.
In Mahoning County, there are only four lawyers certified by the Ohio Supreme Court to serve as lead defense counsel in death-penalty cases.
"That number is very low," said Judge R. Scott Krichbaum of Mahoning County Common Pleas Court, who handled capital cases during his days as a defense lawyer. "I'd say it's alarmingly low."
Trumbull County has two lawyers who can accept court appointments as lead counsel in capital cases, and Columbiana County has one. However, those lawyers serve as public defenders in their respective counties.
Mahoning County does not have a public defender office. Instead, judges appoint individual lawyers who are paid at taxpayer expense. Court officials say not many years ago, there were more than a dozen lawyers certified to take on capital cases here.
State certification
In Ohio, lawyers must receive specialized training through the state before they can be appointed to represent someone in a capital case who can't afford to pay for legal defense.
In those cases, the law requires that two defense lawyers be appointed -- one to serve as lead counsel and one to serve as "second-chair." Lawyers with second-chair status are not permitted to handle a court-appointed case on their own. There are seven such lawyers in Mahoning County.
Only defense lawyers who want to accept capital cases by court appointment to represent indigent defendants are required to undergo the training. Lawyers who are paid by the defendant instead of the state don't have to get state certification.
"But those cases are few and far between," said Atty. James Lewis of the Ohio Public Defender's Office. "Most of the cases we get around here are indigent defendants."
Lewis and Atty. Anthony Consoldane, also a state public defender, are assigned to Trumbull County. Columbiana County's public defender is Atty. Frederic E. Naragon.
"The pressure is terrible and it doesn't pay nearly enough," Naragon said. "I don't blame people for not wanting to do it."
Tough job
John F. Shultz of Boardman is a longtime defense attorney in Mahoning County. He has worked on 10 death-penalty cases since 1985 but stopped accepting court appointments about three years ago.
"From the time I did my first one until the time I did my last one, the money never changed," Shultz said. "It stayed the same the entire time." He handled death-penalty cases for about 18 years.
Mahoning County pays court-appointed lawyers $40 per hour for out-of-court time on capital cases, and $50 per hour for in-court time, with a maximum cap of $12,500 per case.
Judge Krichbaum said a lawyer generally must start a year in advance preparing for a capital case, devoting progressively more time to it as the trial date draws nearer. For the last month or six weeks before trial, that's all that gets done. Trials can take weeks, from jury selection to verdict.
"I had one [capital] case in Trumbull County that damn near ruined my practice," Shultz said. He'd devoted so much time to that case that other clients grew tired of waiting on him and found another lawyer.
Right to a fair trial
Gary Van Brocklin, another longtime defense attorney, agreed with Shultz that the money is terrible but said he still accepts court appointments in capital cases. Lawyers have an ethical obligation to see that everyone has a fair trial, Van Brocklin said.
"No matter how despicable folks think these people are, they're still human beings," Van Brocklin said. He has seen death-penalty cases from both sides of the courtroom, having served as Mahoning County prosecutor from 1985-89.
Like Shultz, he's lost clients because of time spent on capital cases. He's also lost sleep because of the pressure, and he's lost friends because of the stigma attached to representing an accused murderer.
"It's an awesome responsibility," Van Brocklin said. "But these are the most special kinds of cases anyone can be involved in, either as a defense lawyer, a defendant, a prosecutor or a judge."
Pay cap
Shultz said lawyers will probably continue backing away from court appointments in capital cases until the cap is increased to an amount that fairly compensates a lawyer for the time he or she spends working on it.
Judge Krichbaum said that under state guidelines, judges could increase the cap to $15,000, but it's not likely given the county's dire finances.
"In a time of budget restrictions, the last thing people want to hear is that we need more money for criminal defense," he said.
Shultz said the additional $2,500 wouldn't be enough to lure him and other experienced defense lawyers back into the capital case arena.
"They've got to come up with some kind of a realistic cap," he said.
The financial pinch of representing death-penalty defendants is compounded by the emotional and psychological pressure of the cases, Van Brocklin said.
"It's tough to lose someone to the [death penalty]," he said. "And it's not like the death penalty has gone out of fashion in Ohio. It hasn't."
In fact, Shultz said the last time he questioned potential jurors in a capital case, every one of them was in favor of the death penalty.
"Some of them thought it should be extended to other crimes," Shultz said. "The attitude of society toward the death penalty is a bit distressing."
bjackson@vindy.com