Nickels defense cost county $600,000

EPHRATA - The defense of David Nickels has cost Grant County $600,600.

Since Grant County Superior Court Judge Evan Sperline approved $250,000 to pay for four experts in January 2011, and approved paying the attorneys in April 2011, the cost of defending the Helena, Mont., man has grown steadily until it now equals a nearly a quarter of the public defense's $2.8 million budget.

A Grant County jury convicted Nickels, 31, of first-degree murder following about six weeks of testimony and about five days of deliberating. The attorneys recently filed a motion for a new trial, arguing they have new evidence showing another person was guilty of the crime.

Prosecutors filed a response stating the evidence was more rumor and unsubstantiated hearsay.

The motion is scheduled to be heard on Dec. 17, along with sentencing.

Expert fees

Jackie Walsh and Mark Larrañaga's involvement in the case started roughly two months after Nickels was arrested for Munro's murder. Nickels was initially assigned a public defender, but was replaced after a family member hired the attorneys to represent Nickels.

Walsh made her first appearance during an Aug. 10, 2010 motion and omnibus hearing roughly two years before Nickels made it to trial.

"I was privately retained by the family. My client remains indigent," she told Superior Court Judge John Antosz at the hearing. "I think it's fair to say I come cheaply to the county."

For roughly three months, Walsh's prediction remained true. She didn't cost the county any money. The situation began to change following a request for the county to pay for four experts, including an investigator, and push out the trial date a year.

Walsh's argued in her motion Nickels' family hired her, but he remained indigent. Since Nickels had a right to a fair trial, it wouldn't be fair to deny him access to experts. She made the original argument in October 2010 in front of Superior Court Judge John Knodell.

"Mr. Nickels has a right to not only a fair trial, but also has a right to counsel, under the umbrella of a right to counsel, he certainly has the right to effective assistance of counsel, and to be effective, that also includes the ability to properly prepare for trial," Walsh said. "The ability to properly prepare for trial is tied to the defense being able to make ex parte requests for funding."

The "ex parte" requests are ones made outside of open court, without the prosecution being able to comment on the requests. Walsh also asked for the requests to be sealed, so the prosecution wouldn't know what the defense's strategy would be prior to the trial.

She pointed out both sides agreed Nickels remained indigent even though Walsh was hired by a third party.

"An indigent defendant should be treated exactly the same as a person who has the financial means to support their own case and not have the necessity to go to the court and request funding," Walsh said.

Originally Walsh requested the court assign a single trial judge and a separate judge to review funding requests, according to court records. At the time, she argued it would take about a year to prepare for trial, citing the complexity of the case.

It was a move Prosecutor Angus Lee called at the hearing giving a blank check to Walsh pointing to a Yakima case Walsh was involved in. Walsh defended Jose Luis Sanchez Jr. in an aggravated murder case where Sanchez was accused of killing a 21-year-old man and his 3-year-old daughter during a robbery. Walsh and Steve Witchley spent $1.5 million in the space of a year defending the man, according to the Yakima Herald-Republic.

As part of the case, Walsh successfully argued for sealing the funding requests, and two judges were appointed to handle the case.

"Ms. Walsh is doing a couple things here," Lee said at the October 2010 hearing. "She's asking for a continuance of a year. She's asking for a blank check from the people of Grant County."

Lee called sealing the requests inappropriate, saying a judge needed to go through a proper legal analysis to determine whether the requests should be sealed.

"You have to use the least restrictive means because under our constitution, this is an open court state," she said.

The issue went to a January 2011 hearing in front of Judge Evan Sperline. Walsh and Larrañaga presented requests for four experts, including a private investigator. Larrañaga continued the argument, stating allowing the public and prosecution to know who was hired and why would hurt Nickels' chance for a fair trial.

He argued sealing the motions was the least restrictive means to protect Nickels' right, saying just redacting the information would put too much of a burden on the court.

"It will be a hearing within a hearing," Larrañaga said. "It places this court and us, but really this court, in a difficult situation of having to make decision after decision ... It is an administrative nightmare that will not solve this issue. In fact, it will create more issues."

Sperline agreed, saying the motions explaining why the defense wanted to hire the four experts explained the attorneys' strategy and shouldn't be available to the public or the prosecution.

Sperline said the amount paid to the experts should be available to the public, but the names and occupations of the experts would by redacted, except for the investigator hired by the defense.

"The defendant's right to fair trial is as fundamental and significant a right as our justice system recognizes, underlying every other right of an accused. It greatly outweighs the public interest in knowing before trial the identity and area of professional expertise of people retained to assist defense counsel, especially where the public knows the number of people who have been appointed and the rate and amount of their compensation," the judge read.

He also pointed out the names and professions of the experts would be revealed once the trial starts, but would allow the defense attorneys to file objections to any of the files being unsealed.

The decision was the last time the issue would be discussed in open court.

Walsh and Larrañaga hired by Grant County

While Sperline approved hours and rates for the experts and the investigator, Karen Sanderson, no invoices were filed until April 2011. The invoices started being filed after Sperline approved a motion for the county to hire the attorneys. The decision followed the inability for the third party, which initially hired the attorneys, to pay anymore.

"By law, because a person's family can afford to hire an attorney, does not mean that the person is other than indigent," Sperline said in an interview. "So Mr. Nickels remained indigent even though his family could afford to hire them."

After the attorneys did a considerable amount of work, Sperline said the family member couldn't pay any more.

"So Walsh and Larrañaga contacted me by letter and said, 'That Mr. Nickels would need to have an attorney appointed,' They indicated they were willing to accept that appointment at the rate of $90 an hour, and by doing that we would avoid having to have an attorney redo whatever work they had invested in the case up to that point."

Sperline brought the request to then Director of Public Defense Ray Gonzales, asking him to review the proposal with the county commissioners, Sperline said.

"Mr. Gonzales got back to me, saying that appointing Walsh and Larrañaga at the rate of $90 an hour appeared to be the best approach, and requested that I do that," he said.

While the commissioners initially questioned the mounting costs as they reached about $100,000, they remembered after meeting with Sperline they agreed to the proposal. Commissioner Richard Stevens said at the time the request was made the department was concerned with the amount of case credits it had remaining for its attorneys.

Sperline said there may be many reasons why it was better for Walsh and Larrañaga to stay on the case.

"It's the kind of case where a defender would be entitled to associate an experienced attorney in murder cases," he said. "So I think it wasn't a proposition of Walsh and Larrañaga at $90 an hour versus a defender at zero. There would be considerable expense under either approach."

Potentially a private attorney could charge $200 an hour in a similar case, Sperline said.

"Certainly you're not going to go out and hire an experienced first-degree murder attorney for $75 an hour," he said.

Sperline based his decisions on approving the requests based on necessity and reasonableness, he said.

"That's going to vary case by case," he said. "This is a case, just because of the nature of the evidence that's presented to the lawyers, where they have had to work in five states. They have over 100 names on the witness list that the state has provided. The rules of competent legal representation require them to interview all of those people."

Sperline added the attorneys needed to investigate a host of issues involving the evidence since most of the evidence was circumstantial.

"Regardless of who provided this representation, it was going to demand a great deal of skill and expertise and a great deal of time, if it was to be done competently," he said. "So when I look at these billings, I look at the specifics of what they're doing, and I try to ask myself, 'Is that reasonably necessary to an adequate defense, to a competent defense, and is it reasonable in terms of the time and dollars?'"

He used the same process to review the billings from the investigator, and has questioned when a particular item is performed by the investigator and the attorney, Sperline said.

"(I) have requested of the lawyers that they supplement their request to justify why both the investigator and lawyer needed to be involved, and they have done that," he said.

Sperline also pointed out a July 2012 bill from the private investigator where she hired contractors to travel to areas, rather than hiring contractors in the areas where she needed them, which they had done in other cases, such as hiring Moses Lake attorney Robert Schiffner to handle items in the case, according to court records.

Neither Walsh nor Larrañaga responded to questions about the costs.

The invoices

Sperline decided to leave invoices with the amounts paid to the attorneys, the private investigator, the paralegal and the experts open to the public. The invoices are stripped of any detail which may explain why the funding requests were made, according to court records.

The affidavits explaining the reasons for the requests remain sealed about two months following the trial. Sperline said shortly before the original sentencing date they may address the sealed files at the time of sentencing.

The defense attorneys are responsible for the majority of the costs, according to the invoices. They spent $92,932 in 2011 and at least $210,297 in 2012, with the highest month being the first month of the trial, which cost $55,341.

The investigator, Karen Sanderson, cost nearly as much, according to court records. She spent $68,608 in 2011 and $120,089 in 2012.

The paralegals hired for the case cost $4,746 in 2011, and $44,481 in 2012, according to court records. Experts and other attorneys cost $59,447 for 2011 and 2012.

The county did not plan on the costs for the defense going as high as they did, and presently put most of the costs into the 2012 budget, Commissioner Cindy Carter said.

Stevens said the county is hoping to recoup some of the costs in 2012 from the state Office of Public Defense.

The county is presently submitting an application for reimbursement. The request first goes to the Office of Public Defense and then is reviewed by a committee made up of representatives of the Washington Association of Prosecuting Attorneys, the Washington Association of Sheriff's and Police Chiefs and the state Office of Public Defense.

The committee prioritizes the requests and sends them to the Legislature, where they could receive funding.

The county went through a similar process in 2006 in the murder cases of Dustin G. Abrams, Jake Eakin and Evan Savoie, according to county records. The county sought $280,947 in prosecution and defense costs for Eakin and Savoie in 2006. The cost included four attorneys, three cost $100 an hour and one cost $75.

The county requested $80,598 for the prosecution and defense of Abrams, according to county records.

If the county receives money from the state to pay for the defense costs, it won't include the costs from 2011. The county did not apply for money for the case from the year.