Penry lawyers get a raise
Polk County Enterprise, May 2007
LIVINGSTON – Fees for the court-appointed attorneys defending Johnny Paul Penry in his fourth punishment trial for capital murder were increased following a pretrial hearing before 258 th District Court Judge Elizabeth Coker.
Coker authorized lead attorney John Wright of Huntsville to be paid $125 per hour and co-counsel Frank Blazek to be paid $100 per hour, whether those hours are spent in the courtroom or on trial preparation.
Penry faces a fourth punishment trial for the capital murder of Pamela Moseley Carpenter, 22, on Oct. 25, 1979.
The Supreme Court of the United States ruled 5-4 in June 2006 that the word “other” in instructions to the jury may have prevented jurors from adequately considering mental impairment as a mitigating factor during deliberations at his third trial in 2002.
Friday’s hearing on attorney fees for the two court-appointed attorneys resulted from a complaint from Blazek, who testified Friday that he was paid $50 an hour for time he’s spent on the case outside of the courtroom and $90-100 per hour for court appearances.
During cross-examination, Blazek told Hall he is not trying to be dismissed from the case and that his departure would be detrimental to Penry’s defense.
Blazek added that he had never agreed to the $50 per hour fee.
When Hall asked about Blazek’s fees in other cases, Blazek answered that he has charged $200 per hour in some cases, but typically represents criminal clients on a flat fee basis.
Hall then asked about Blazek’s assignments as a special prosecutor in Grimes and San Jacinto counties.
Blazek said his recollection was that the fees were very low in San Jacinto County, but he thought they were greater than $50 per hour in Grimes County.
“Are you aware that those fees are statutorily capped?” Hall asked.
Blazek answered he was not aware of the cap and when they asked he agreed, but that he believed the fees were greater than $50 per hour in one Polk County case that District Judge Robert Hill Trapp had assigned him to.
Wright presented documents subpoenaed from several counties in Texas for attorney fees paid in civil proceedings and called Houston attorney Katherine Scardino as an expert witness to testify about attorney fees.
Scardino had been called to testify in a pretrial hearing March 16 when Wright asked Coker to close the hearing to the public and prosecutors based on attorney-client privilege.
Coker denied Wright’s request to close the hearing and a later request to abate proceedings until a compensation plan for court-appointed counsel can be approved.
Scardino testified she had recently completed a death penalty case in Brazoria County and has defended others in Harris, Galveston, Fort Bend and Liberty counties.
Harris County currently sets a flat fee for court-appointed attorneys in capital murder cases where the death penalty is being sought, she said.
Although each case is different, she said a traditional Harris County fee of $36,600 works out to about $100 an hour based on the time she’s spent in prior cases.
In one recent capital murder case, Scardino said she and her co-counsel were paid $45,000 each because there were 37 extraneous offenses involved.
Scardino said the $50 an hour rate she had been told Blazek was getting was not enough to meet overhead expenses, and that she would refuse to take a case at that rate.
During cross-examination by Hall, Scardino said fees for expert witnesses, mitigation specialists and paralegals were billed in addition to those attorney fees, in her experience.
Scardino told Hall that she supplements fees collected in capital cases by taking family law cases during which she typically charges $200 per hour for her services.
Scardino said the number of cases she takes are split 50-50 between family law and criminal defense, but that she spends about 75 percent of her time on criminal cases because that’s what she loves to do.
The $125 an hour she billed in the recent Brazoria County case was on the low side, she said, but was adequate.
In that case, Scardino’s defendant was found guilty of capital murder for shooting two Freeport residents to death.
That defendant, John Joe Bodley, received a life sentence after family members of the victims asked prosecutors to accept a sentence arrangement that stipulates Bodley waives any right to appeal. He must serve 40 years before becoming eligible for parole. Two other people suffered gunshot wounds in the Freeport incident, but survived.
The cost of prosecuting Penry over the last 28 years has cost taxpayers millions of dollars, Polk County District Attorney Lee Hon told The Dallas Morning News in 2006. Taxpayers have paid for Penry’s defense as well since he has been classified as indigent since his 1979 arrest. The Texas Governor’s office has authorized two $100,000 grants to help Polk County with costs.
During early appeals, the Texas Attorney General’s office assisted with the case, former 258 th District Attorney Joe Price said in 1998.
Hon estimated the cost of this fourth trial at roughly a half million dollars.
Coker set the next hearing date for 9:30 a.m. May 25, after the deadline set for a neutral expert’s report on Penry’s mental competency.
Defense attorneys told Coker that date would not give the defense expert adequate time to make their own evaluation of the independent expert’s report.
The defense team also met with Coker, Hon and District Clerk Kathy Clifton to discuss methods for making the voluminous trial record available for the expert witness to review.
Hon has been very effective at impeaching defense witnesses that had not reviewed everything that has occurred in this case, pro-bono defense attorney David Lane said.
Testimony from the 2002 competency hearing was one of the items Lane mentioned the defense team still needed.