Thus it was that when The Charlotte Observer uncovered evidence that taxpayers were paying for former Carolina Panther Rae Carruth's defense--and that said defense had by mid-trial cost upwards of $121,000--thus it was that much gnashing of teeth was to be heard. The News & Observer's Dennis Rogers huffed that Carruth's NFL salary was "hardly enough to keep a man in Nabs," especially given all the "hootchy-kootchy dancers he was helping through beauty school." And word from one Panthers fan, holding forth on the small-appliances aisle at the Hillsborough Wal-Mart, was that Carruth "doesn't deserve the spit it took to shine that fancy lawyer's shoes." For his part, Carruth's lawyer, David Rudolph, told The N&O that "the only important thing is that Rae Carruth is receiving a competent, caring defense."
Like it or not, a competent, caring defense is expensive--too expensive even for a $40,000-a-game NFL wide receiver. There's no use arguing Carruth's indigent status; the mighty hath fallen in his case, and from the looks of the company he kept, it was bound to happen sooner or later. There's also no use complaining about David Rudolph's price tag. It may be significantly higher than the average $66,000 spent on capital cases in this state, but after all, Rudolph provided a better-than-average defense. He spent what it took to represent his client well.
In fact, if North Carolina taxpayers feel compelled to gnash their teeth, it ought to be over this very inequity--over the fact that state-appointed defense attorneys in the average capital murder trial cannot hope to spend anything close to what David Rudolph, and co-counsel Christopher Fialko, spent defending Rae Carruth. Carruth's tax-paid legal bills are an abomination all right--an abomination that every capital defendant deserves and few get. They are one more example of the capriciousness of the system, another flaw in our practice of condemning people to die.
Under North Carolina law, defendants in capital cases have the right to two publicly funded attorneys. These lawyers are supposed to be paid $85 an hour for their services, but final compensation is up to the trial judge. A very few judges, understanding the grueling and complicated nature of death-penalty cases, pay the lawyers' tabs in full. Others, hoping for a quick and inexpensive resolution, pinch pennies. In high-profile cases like Rae Carruth's, where the defense attorneys are smart and aggressive, judges will sometimes award money for such "extras" as expert witnesses, investigations and jury consultants. In most cases, though, defense lawyers are lucky to get reimbursed for their hours.
In death-penalty litigation, as in everything else, you get what you pay for. And it's crucial that defendants get good representation when they go before a jury. Appeals are hard to win; the momentum to execute is extraordinary. It is therefore at the trial stage that the defendant stands his best chance of staying off death row. Unfortunately, the quality of representation at trial has for years been notoriously sketchy. Far too many capital cases fall into the hands of lawyers who are under-qualified and overwhelmed, while skilled and experienced criminal defense attorneys shy away.
These lawyers are wary for good reason. Death-penalty law is complex and mutable, and the trials are strategically and psychologically different from other criminal trials. They require an immense time commitment, not to mention an understanding of myriad disciplines outside the law: mental illness, retardation, child abuse, neuropsychology. Under all these pressures, a lawyer in a small practice will find herself neglecting her other clients and alienating her family--all for the sake of a defendant whom everyone in her community wants dead.
For many, the final straw is the uncertainty of compensation. Most reputable defense attorneys charge considerably more per hour than the $85 allotted by the state in appointments to capital cases. And yet, when they agree to take the cases, they can't necessarily count on getting paid even the minimum rate.
It's an uncertainty that even the best lawyers have to face. Compare David Rudolph's story with that of a eastern North Carolina lawyer I'll call Victor Bolling. (Bolling, who is now a Superior Court judge, asked that neither his name nor the particulars of his former client's case be revealed.) Before Bolling became a judge, he was a well-respected criminal defense lawyer, and a veteran of capital murder cases. Late in his career as a trial lawyer, Bolling was asked to represent a man charged with first-degree murder. The trial would be held in a neighboring county, however, and Bolling resisted. He was a sole practitioner and understood the havoc a death-penalty case could wreak on a lawyer's life and practice. The additional burden of travel--the defendant was imprisoned 50 miles away--would only add to the crushing work load.
In the end, though, Bolling took the case. "It took two years to get ready for trial," he said, "and it was a lot of weekend work and a whole lot of work on the road. In a capital case, you have to establish a good rapport with your client, or you'll get nowhere. So I was in the car a lot, and let me tell you, it was not a four-lane highway."
In the end, Bolling's client was convicted and sentenced to life. The final bill for Bolling's work came to $42,000. "There were no unusual or special costs," he says, "and I always dictated detailed reports about where I'd been and what I'd done. The money was for hours spent with my client, preparing documents, doing legal research, searching criminal records. In a case like this, you have to spend a lot of time trying to talk with people about [your client's] background. This is hard, high-pressure work, and if you do it right, it adds up."
Forty-two thousand dollars may seem like a lot of adding up, but it's quite a bit less than the average $66,000 spent on capital cases--and a good deal less than what Rae Carruth would have spent had he hired Rudolph at the lawyer's regular $300-an-hour fee. Simply dividing by the hourly wage, Bolling's $42,000 works out to 12 40-hour weeks--and that includes the trial itself. After state and federal taxes, Bolling would have to pay his staff, overhead, supplies and administrative costs of litigating the case. From any perspective, it was hardly an extraordinary amount to spend on a death-penalty case.
From any perspective, that is, except that of the trial judge, who arbitrarily cut $16,000 from Bolling's final tab. It wasn't the first time the lawyer had had problems getting paid. In a previous case, years earlier, it took so long to get a check from the state, he'd had to take out a second mortgage on his house just to buy office supplies and pay his secretary. Still, this was different--a judge refusing to pay him for his work.
"Was I upset? Oh, man!" Bolling says. "I wrote a letter to the trial judge, I wrote a letter to the chief justice, but I never got paid that $16,000. And the trial judge never did explain. If I had to speculate, I'd say he felt like he was not going to award some attorney fees that amounted to half his own annual salary."
It was Bolling's last capital case before becoming a judge. Asked whether the experience would have put him off taking other capital cases had he stayed in private practice, Bolling says, "You're darn right it would. If I let that happen to me again, then I'm the fool."
Last Friday afternoon, the jury hearing Rae Carruth's case found him guilty of conspiracy to commit murder--and not guilty of first-degree murder, thus ensuring he will not face the death penalty. Carruth's defense, one Charlotte attorney told the press, was "the difference between life and death."
That's the lesson of Rae Carruth's trial: A good defense is crucial--and expensive. As an aside, there's been no mention of--much less outrage over--the amount of money prosecutors spent trying to put Carruth on death row.
For defendants in capital murder cases in North Carolina, the death penalty is fraught with crap shoots. From plea bargain to final sentence, decisions are based on the shifting sands of politics, personalities and prejudices. There are no patterns, no rhyme or reason, unless you count the sinister specters of race and class.
The stories of David Rudolph and Vick Bolling illustrate yet one more significant piece of the capricious puzzle. They also show that good lawyers--the ones most needed in death-penalty work--will turn away from these cases if they are exploited by the very system that fingers them for the work.
According to Mary Ann Tally, an attorney at the Center for Death Penalty Litigation in Durham, the inequities in compensating defense lawyers put defendants in capital cases at the mercy of the court when it comes to the quality of their defense. She notes that prosecutors handling death-penalty trials don't have to ask the trial judge for money to conduct an investigation or hire an expert witness. "The power of the purse is a serious power," she said. "And North Carolina has operated under this unfair system for a long time."
But not, she says, for much longer. State lawmakers recently passed legislation authorizing a spate of indigent defense services--including a committee that would assume the responsibilities of both appointing and compensating defense lawyers in capital trials. There will still be inequities in death-penalty cases, and high-profile defendants like Rae Carruth will continue to work end-runs the average alleged murderer can't manage. Still, taking the power of compensation away from the court should go a long way toward leveling the playing field.