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Defense lawyer for rape suspect seeks trial delay because state won't pay legal fees

A Beaufort defense attorney appointed to represent a St. Helena man who faces rape, armed robbery, kidnapping and carjacking charges is asking that his client's trial be delayed because the state won't cover his legal fees.

The South Carolina Commission on Indigent Defense voted late last month to stop paying court-appointed attorneys in non-capital criminal and civil cases, a decision that has angered many in the state's legal community.

Beaufort lawyer Jim Brown filed a motion in Beaufort County court Wednesday to halt prosecution of Alfonzo Howard, who faces eight felony counts and up to 150 years in prison if convicted. Brown was appointed to represent Howard in the spring of 2007. Brown wants his client released on bond, set at $1 million after his May 2006 arrest. He also wants Howard's trial, scheduled for February, postponed again. Brown argues that he can't adequately represent Howard if the state won't pay his legal fees.

"This conflict is a realization of the tension between Howard's needs for vigorous representation, involving hundreds of hours of work, and counsel's financial interests in maintaining a solvent solo practice," Brown wrote in his motion. "The current situation of certain non-payment of attorney fees guarantees that counsel will be deprived of any payment for his services, will foot the bill for his office overhead and will be forced to forgo other profitable compensation."

Private-practice lawyers are appointed by a judge in criminal and some civil proceedings if the defendant cannot afford an attorney and if there is some conflict of interest that prevents a public defender from representing them in court.

Court-appointed attorneys received $40 per hour for out-of-court work and $60 when in court. Lawyer fees typically are capped by the state at $1,000 to $3,500, depending on the type of case.

The Commission on Indigent Defense said it will review its decision "within 90 days" to determine if lawyers can be paid again.

Howard was one of two men arrested May 26, 2006, for allegedly abducting a Nashville, Tenn., couple at gunpoint and knifepoint from a parking lot in downtown Beaufort.

Investigators say Howard and Lorenzo Hicks, 25, took the couple to a wooded area near Beaufort High School and sexually assaulted the woman after binding her husband's hands with a belt and blindfolding him.

Police say the man escaped and ran to a nearby home, where he called 911.

Howard and Hicks were arrested that night on the charges and have been held at the Beaufort County Detention Center awaiting trial ever since.

Postponing the trial would be another blow to the couple's already wavering faith in the state's criminal justice system, said the man that Howard and Hicks are accused of attacking.

"That would be a travesty," he said in a telephone interview from his home in Tennessee. "It's just a joke. As citizens, we have a right to speedy trial, and this just scares me. I'm not sure what I'm going to tell my wife if that happens. She's just lost so much faith in the system. She's going to be demoralized.

"I hope that the judge says, 'Look, it's been almost three years; we've got to get on with the prosecution.' I hope that for Mr. Brown, as well, so he doesn't have to do any more work on this case."

Angela McCall-Tanner, deputy solicitor for the 14th Circuit, which includes Beaufort County, will prosecute the case for the state and said she's sympathetic to the plight of state defense attorneys. But "I can't stop prosecuting because the economy is in a rut. I'm going to continue preparing for this case, and await the judge's ruling.

"I understand the argument of the defense attorneys, but I've got a job to do. My office has faced budget cuts, too, but I still have to prosecute."

SIGNS OF THE TIMES

The Commission on Indigent Defense voted last month to suspend payment of legal fees to court-appointed attorneys after its budget was slashed by more than 25 percent, according to a statement issued by the commission.

Court-appointed attorneys handled more than 7,500 cases last year. The state's public defenders handled about 70,000 cases. The commission budget also pays the state's public defenders.

Patton Adams, the agency's executive director, told The (Columbia) State newspaper that the commission will do everything it can to pay attorneys for their work.

"I and the commission have every intention of making sure the lawyers get paid," Adams was quoted as saying. But he added, "It may be a slow process."

Now faced with being asked to work without pay, attorneys are trying to figure out what to do next. Brown said the commission's decision affects all of the players in the criminal justice system, including victims of crimes like the Tennessee couple.

"It's ultimately going to be an unwise decision because it cheats everyone involved with the criminal justice system," he said. "It hurts the judiciary, it hurts defense attorneys, it hurts our clients and it hurts prosecutors because whatever happens in a trial is subject to scrutiny down the road. It's more expensive to try a case two or three times than it is to do it right the first time.

"And it hurts victims of crimes, who may have to see convictions get overturned because of these types of issues. It impacts everyone."

Brown said the commission isn't entirely to blame for the situation.

"I'm not taking a swipe at the commission," he said. "What they're dealing with is not having enough money in their pockets, but they don't control the purse strings. It falls on the legislature to do what both constitutions -- the state and the federal -- require."

State Sen. Tom Davis, an attorney with two court appointments in his caseload, said the legislature should prioritize spending in the face of slumping tax revenues.

"As an officer of the court, you've got an obligation to take on those appointments," he said. "We're in tight financial times, and quite frankly (paying court-appointed attorneys) is pretty far down on the list of priorities, behind health care and education and a host of other things.

"As members of the bar, we just have to take up that burden right now."

State law requires that all active lawyers sign up to take either criminal or civil cases. Exemptions are available to attorneys who have been practicing law in the state for at least 30 years, who are older than 62 or who work for judges and legislative committees.

Of the 8,824 practicing lawyers in the state, 3,131 are exempt from appointments, according to the S.C. Bar Association.

CONSTITUTIONAL CONCERNS

South Carolina ranks 43rd in the nation in public defense spending, according to the Bar Association and stands to fall even further in defending indigent clients with the commission's latest decision, said Flo Vinson, a Florence attorney and president of the organization. The legislature appropriated $8.6 million to the commission this fiscal year. The state spends $7.65 per capita on public defense, according to a study by the National Legal Aid and Defender Association.

"The recently announced elimination of funds to provide representation for many of those accused of crimes further undermines the ability to protect the constitutional rights of our citizens," Vinson said in a statement. "Public defense is a constitutional right and in many instances a legislative mandate, not a discretionary program."

The (Columbia) State contributed to this report.

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