In-Depth: A Defense To Die For?

money-justice

A broad spectrum of attorneys in the Beaver County Bar Association have begun to quietly question whether our courthouse has the resources to justly try death penalty cases. While attorneys in the bar are reluctant to talk about the issues involved publicly, court filings in the county’s capital cases are beginning to speak volumes on their own. As with many things, the problems seem to revolve around money.

Beaver County currently has four defendants who are awaiting trial that are facing the possibility of receiving the death penalty if convicted.

The Capital Defendants And Their Attorneys

Stepbrothers Joseph Arlott, age 25, and Beau Chermer, 22, both of McKees Rocks, are accused of brutally beating 82 year old Daniel Santia in his Hopewell Township home on April 29th of last year. Santia later died in the hospital, and prosecutors say his death was a result of an attack that amounted to torture. District Attorney Anthony Berosh announced his office would be seeking the death penalty against both men last August.

Robert Burgess, age 35, and Devon Shealey, 26, both formerly of Pittsburgh, have been charged with the 2008 killing of a Beaver Falls couple. Authorities say Richard and Demetria Harper were shot execution-style in the basement of their home while their two young girls were locked in a nearby room. District Attorney Anthony Berosh announced his office would be seeking the death penalty against both of those men last November.

All four of Beaver County’s capital defendants have been declared indigent, and under the United States Constitution each is entitled to have representation appointed by the court at no cost to them.

With each defendant having two attorneys to handle their case, four capital defendants means eight defense attorneys. Pennsylvania requires special certification from the State Supreme Court for attorneys defending death penalty cases. Of the nearly 10,000 licensed attorneys in Beaver, Butler, Allegheny, and Lawrence Counties, only 29 are Capital Case Certified, according to statistics compiled from the PA Supreme Court Continuing Education website. Of those attorneys, only 1 works in the Beaver County Public Defender’s Office.

Although it was widely known the county would be seeing an influx of capital defendants months before the District Attorney officially announced he would be seeking the death penalty, the Beaver County Public Defender’s Office had no attorneys certified to handle capital cases, including Chief Public Defender Paul Steff. It wasn’t until Assistant District Attorney Kevin Kindred transferred to the Public Defender’s Office last year, and became certified by his own initiative, that the county had anyone capable of defending a capital case.

Without qualified attorneys in the Public Defender’s Office, the county courts were forced to seek private outside council to augment the representation of capital defendants. Beaver County defense attorney Mitchell Shahen and Pittsburgh attorney Thomas Farrell were appointed to represent Robert Burgess. Beaver County Assistant Public Defenders Kevin Kindred and Dirk Goodwald (who is not Capital Case Certified) represent Devon Shealey. Defense attorneys Dennis DeMartini and Gerald Benyo were appointed to represent Beau Chermer. Assistant Public Defenders Kevin Kindred and Thomas Phillis (who is not Capital Case Certified) were left to represent Joseph Arlott.

Having spent his time as an Assistant District Attorney, Kevin Kindred, the only employee of the Public Defender’s Office who is Capital Case Certified, has never defended a felony case in trial much less served as defense in a homicide case. But with no other certified defenders, Kindred now finds himself appointed by the courts to serve as lead defense council in two separate death penalty cases simultaneously.

Outside council means third-party billing for the county, and attorneys Mitchell Shahen, Thomas Farrell, Dennis DeMartini, and Gerald Benyo set out to establish budgets for their cases. A series of court filings reveals one of the largest areas of contention between appointed defense council and the courts… their hourly fee.

A Trial By Numbers

A filing by attorney Mitchell Shahen on February 21st titled “Motion to Approve Counsel Fees and Costs” outlines the argument of defense attorneys. Shahen’s motion quotes from The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, “Counsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibility inherent in death penalty representation … Flat fees, caps on compensation, and lump-sum contracts are improper in death penalty cases.”

Shahen had previously proposed an hourly rate of $125 to the court in his original budget, a sum summarily rejected by Judge John P. Dohanich. Shahen’s newest motion sought just $75 per hour, a “rate to be an amount much lower than the prevailing rates for similar services performed by retained counsel in this jurisdiction.”

The motion noted that rates set for Federal cases can go up to $178 per hour, and provided statistics for other counties in Pennsylvania that have recently tried capital cases.

County
Attorney Fee
Additional Payments
Cumberland$150/hr ....... In Court
$100/hr ....... Out of Court
$40/hr ....... Paralegal
No Provision
Lehigh$75/hr ....... 1st Chair
$50/hr ....... 2nd Chair
No Provision
Blair$5,000 - $7,000 Flate RateUpon request of counsel: caps on fees
Delaware$65/hr .......... In Court
$50/hr ....... Out of Court
$40/hr ....... Travel Time
$10,000 Cap on Capital Homicide
Petition Court on expenses greater than $200 and for relief from Cap limits
Westmoreland$45/hr ....... No CapsUpon request of counsel
Clearfield$50/hrDone by petition
Fayette$50/hrDone by petition
Schuylkill$100/hr ....... In Court
$75/hr ....... Out of Court
Reimburse attorneys for seminars, etc. necessary to maintain certification
Northampton$75/hr ....... Cap $20,000$10,000 cap on experts, etc.
Carbon$100/hr ....... In Court
$75/hr ....... Out of Court
No Provisions

Attorney Mitchell Shahen compiled his bill for the court, covering a total of 152.6 hours he spent working on the case to date. The total included .81 hours of In Court time and 151.79 hours of Out of Court time. At $75 per hour, Shahen sought compensation in the total of $11,578.16. But Shahen also included a second calculation in his motion, in case the court felt it appropriate to bill In Court and Out of Court time at differing rates, $75 and $60 respectively. Using that calculation, Shahen’s alternative bill submitted to the court totaled $9,168.15.

He would see neither.

On February 26th, Judge Dohanich issued an order requiring Beaver County to pay Mitchell Shahen $7,101.55, an effective hourly rate of just $46.

A similar motion filed by defense attorney Gerald Benyo asked the court to approve payment for 50.5 hours spent to date preparing a defense for Beau Chermer. Benyo noted that his normal hourly rate in Beaver County for non-Capital criminal cases is approximately $200, but was asking the court for $75 per hour, “an amount much lower than the prevailing rates for similar services performed by privately retained counsel in this jurisdiction, and no more than the currently approved hourly attorney fee set by the Court for less serious cases for which any licensed attorney is eligible to be appointed.”

While the itemized bill submitted by Mitchell Shahen remains public record, the courts have sealed the invoice submitted by attorney Benyo. What is known, is that on March 4th President Judge John D. McBride ordered Beaver County to pay Benyo $2,201.25, an effective hourly rate of just $43.59.

An examination of court records in all of Beaver County’s current capital cases appear to show local courts have established the following rates for the appointed defense attorneys:

Administrative Time
Meeting With Client / Reading Transcripts
Legal Research / Drafting Motions
Court Time
$30/hr$45/hr$60/hr$75/hr

Hourly attorneys fees are not the only fiscal matters of contention in the county’s current capital cases. A flurry of court motions reveal another matter of concern, the costs of investigations, and mitigation experts.

Mitigated Mitigation Expenses

If a jury finds a capital defendant is guilty following a trial, the case proceeds to a “penalty phase” where jurors decide if a convicted murder should be given life in prison or be executed. Jurors are instructed to weigh aggravating factors, relevant circumstances presented during trial that make the harshest penalty appropriate, against mitigating factors, evidence presented about the defendant’s character, past or other circumstances of the crime, which would weigh in the defendant’s favor.

Mitigation experts work as investigators throughout the course of a case, preparing for the potentiality of that “penalty phase.”

In January of this year, defense attorney Dennis DiMartini submitted a motion asking the court to approve payments to retain a “Capital Mitigation Specialist” for the case against Beau Chermer. “The United States Supreme Court has repeatedly emphasized that the Sixth Amendment right to effective representation demands, in a capital case, the thorough investigation and development of mitigating circumstances,” DiMartini wrote.

The defense asked the court to allow them to retain Ingrid Christiansen, from the Center For Capital Mitigation, at a rate of $100 per hour. In an accompanying letter submitted by Christiansen, she writes “I estimate that the first phases of my mitigation investigation, including interviewing the client, locating and interviewing family, friends, teachers, professional persons with whom he has had contact, summarizing and organizing interviews, obtaining, reading, summarizing, and organizing records, beginning a Bio-Psycho-Social History, outlining the themes and mitigation requirements of the case, and locating and assisting expert witnesses in evaluating the client, will take a minimum of 400 hours.”

On February 8th, defense attorney Dennis DiMartini received a simple 4 word response from President Judge John D. McBride, “The Motion is Denied.”

Defense Attorney Mitchell Shahen submitted a similar request to hire Mitigation Expert Louise Luck on behalf of capital defendant Robert Burgess. Shahen noted for the court that the American Bar Association Guidelines “require every criminal defense team facing a capital punishment sentence to have at the minimum two attorneys, a private investigator, and a mitigation specialist.” Ms. Luck would be paid $100 per hour not to exceed an initial budget of $10,000.

On February 25th, Shahen’s request was similarly denied.

Assistant Public Defender Kevin Kindred asked the court for $5,000 so that he could pay a retainer to a mitigation specialist on behalf of capital defendant Joseph Arlott. He was likewise denied by President Judge McBride, who noted that Arlott was represented by the Public Defender’s Office, and said any funds for a mitigation specialist should come from that department’s budget. But an examination of the Beaver County Budget by the Beaver Countian showed funds for the Public Defender’s Office are on the decline. In 2012 the county budgeted $1.21 million to the PD’s Office, compared to just $1.16 million in 2013. Officials say any money spent by the Public Defender’s Office on capital cases would have to come in the form of a special disbursement of county funds.

County Commissioners will likely be the ultimate deciders of how much will be spent on mitigation experts and investigators, if anything, for capital defendants represented by the Public Defender’s Office.

Investigating Investigative Costs

Defense Attorney Mitchell Shahen submitted an “Open Records Request” on March 4th, attempting to determine just how much money the county spent investigating the case against his client. Along with seeking documents that would reveal budget totals for the District Attorney’s Office ($2.42 million in 2012 and $2.39 million in 2013), Shahen also requested a “list of all approved expenditures for any County employee for services or expenses related to the June 30, 2008 killing of Richard Harper and Demetria Harper in Beaver Falls.”

District Attorney Anthony Berosh told the Beaver Countian that he received a copy of the records request, and that his office was in the process of compiling documents.

A court motion by Defense Attorney Gerald Benyo earlier this year reveals the magnitude of the effort he believes has been spent investigating his client. “It is estimated that the Commonwealth in bringing this case to bare against Defendant utilized over 5,000 man hours with over a dozen police officers, county detectives, volunteers and other individuals reviewing and collecting evidence,” Benyo wrote.

The Beaver County Courts have approved a single investigator each for capital defendants Beau Chermer and Robert Burgess, to be paid no more than $55 per hour, up to a maximum of $4,000 per capital case.

Trial Execution

County Officials declined to speak on the record about just how much they expect the rare influx of capital cases to ultimately cost local taxpayers.

One public document which seems to hint at a figure, is the county’s budget for the Court Administrator’s Office. It is from this budget that outside counsel appointed to capital defendants will likely be paid. The line-item budget for “Contracted Legal Services” in the Court Administrator’s Office saw a bump this year, from $110,000 in 2012 up to $200,000 in 2013. That line-item is budgeted to go back down to $110,000 in 2014, appearing to reveal an anticipated increase in expenses due to the capital cases. Likewise, the line-time for Jury Expenses has gone from $83,000 in 2012, up to $100,000 in 2013, and is set to go back down to $83,000 in 2014.

The figures correlate to a total case budget of $45,000 for each of the two capital defendants being represented by outside court appointed counsel, an amount that defense attorney Dennis DiMartini had sought to spend on a mitigation expert alone.

 

15 comments

  1. awww poor beaver county cant convict killers , they would rather take a plea bargain and let them back out on the streets as usual ! retards it costs us all $50,000. per inmate per year to keep them alive in prison ! do the math 10 years 500 grand ! 20 years a cool million dollars per inmate !!!! kill them like they killed the innocent victims and quit giving them lawyers , thats what the public defenders office is for. beaver county is pathetic !

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    • maybe if they would quit wasting money investigating stupid things there would be more than enough money. walk thru the courthouse one day and look at all the people doing nothing and getting paid very well to do it !

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      • Good article :thumbsup: …and I agree….how much money spent trying to stop the sheriffs office from providing security when they could try to amend the law to allow it and charge for services…. Playing politics costs money and produces very little results.

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  2. Duh,those lawyers are lucky to be members of the bar. Where exactly are these bars & do they get free drinks? Lawyers do very little & get paid very well. Lawyer jokes are bad because lawyers don’t like them and everyone else doesn’t think they’re jokes. LOL

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  3. now THIS kind of article is why i read this site! :thumbsup:

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  4. Whether you like it or not, our criminal justice system is based upon the notion that a Defendant is presumed innocent until found guilty. This guilt must be beyond a reasonable doubt. It is predicated upon the principle that the court would rather let a guilty person go free, than one innocent person suffer a conviction. That is why the burden is so high. All of use should keep in mind that our Constitution requires due process. That means a defendant has a right to “notice and an opportunity to be heard.” Part of the right to be heard concerns affording the indigent defendant the chance to secure experts, investigators, etc. to help balance the Commonwealth’s massive amount of resources. As for the current problems in Beaver county, I like what the U.S. Supreme Court opined in Ake vs. Oklahoma 470 U.S. 68 (1986):

    “This Court has long recognized that, when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.”

    I sincerely hope the Court of Commmon Pleas recognizes that their thrift may ultimately result in a reversal on appeal, and in turn, even more expense in the long run.

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  5. OK SO JP SOMETIMES I HAVE TO FIGHT TO FINISH READING YOURE STORIES CUZ THEYRE LONG AND BORING but ALWAYS FEEL SMARTER WHEN IM DONE thank you!

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  6. SpeakTheTruthToo

    So, the attorney who handled my divorce charged $375 an hour, and his paralegal charged $150 an hour, but the attorneys who handle death penalty cases get paid $45 an hour? Here’s the lesson to take away from this Kindred, Benyo, and others…..get out of criminal defense and get into doing divorces.

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  7. AreYouKiddingMe

    Well, you all have to remember, these punks are being defended by the Public Defender’s Office and also these attorneys are being ASSIGNED by the courts. So, their fees are coming out of your tax dollars. Would you rather be charged $45 an hour $150 an hour. It’s a no brainer. Besides, who cares, cold blooded murder. AND, there will be a couple more cases coming in the future. Remember the punks that shot that woman in Beaver Falls. Yep, them too. :thumbsdown:

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    • better hope it gets done right the first time because the feds WILL kick it back and youll be paying for a second trial :crap:

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  8. Just kill them all and let God sort it out!

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  9. @quippian

    Its a little more than changing a law, and the sheriff issue is whole lot more than POLITICS.. Stay tuned the other shoe is about to drop…. But to briefly touch base the grey area of some of the outside security, first came about I do recall because he went and brokered deals and fees on his on with out commissioners giving contracts and he entered agreements which county lost money because of him a lot, because he didn’t properly charge, THEN IT CAME TO FRUITION, THAT IT WASN’T WITH IN THEIR JURISDICTION, and prevue of the law, ohhhh and some of it was POLITICAL that cost county thousands of dollars for his personal promotion. Which is wrong, I do feel some work could be fine with changes of law as in security but insurance liability would be issue and its clear they do not have investigative authority do never the less that is another whole law that would have to be change and state police will never allow that.

    I have read your appreciation for life, family, business ect and moving to new community with paved roads before on prior post, that’s the American dream and 3 tax bills make up the responsibility of a new home 1 is county taxes (and it should only be spent for county purposes) 2 municipal tax( which should be for the community in which we live in roads, police fire, infrastructure ect, and that’s it,3 the really high one school SMS it should only be used with in the district, that is the problem here our tax dollars have gone to patrol Aluquippa, motorcycle runs not just here and there for charity which I can see here and there but constant and investigations have lead to find out a certain few have made it quite easy to transport things in these private shuttles (more to come later) and private property being watched with our tax dollars that’s not right and sadly some good deputies get screwed in this and a department looks bad because of one man and a few cronies don’t follow protocol, its a shame and few hanging fruit run around and try to divert the attention as it all political its sad, and about to end soon, just recent a bum was arrested at friendship ridge who is no Angel, but could of been arrested days before, but was held off fit proper time and media was notified before arrest our alleged call was made why political press and the district attorney had to finally step in to right the ship.

    Never the less THESE BUMS ARE INNOCENT UNTIL PROVEN GUILTY YES, BUT CAN NOT AFFORD ATTORNEY SO ONE IS PROVIDED AND I AGREE WHAT I DON’T IS WHY OUR COUNTY TAX DOLLARS IF ITS STATE LAW USE STATE TAXES WHY COUNTY, FURTHER MORE TALK ABOUT LAWS THAT NEED CHANGE MAJORITY OF THESE GEMS ARE NOT FROM OUR COUNTY THAT COMMITTED THESE CRIMES IN THIS COUNTY SO WE HAVE TO PAY FOR IT, SECOND IF DEATH SENTENCE WASN’T ASKED THIS WOULDN’T BE AN ISSUE, LET THEM DIE IN PRISON,

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  10. @OhBrother: God help your pathetic soul.

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  11. i had so many thoughts on this article and the comments that followed. Raven, in my opinion, said it best. Pathetic. 

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