Metropolitan News-Enterprise


Thursday, August 16, 2007


Page 1


C.A. Upholds Seizure of Convicted Killer’s Legal Fees




A capital murder defendant who liquidated assets to pay his defense lawyer, only to have part of the money seized to satisfy a child support lien, was not deprived of his constitutional right to counsel, the Fifth District Court of Appeal has ruled.

The court affirmed Kern Superior Court Commissioner Ralph McKnight’s order allowing Kern County to collect more than $17,000 from the trust account of attorney Kevin Little to support Vincent Brothers’ daughter. Justice Rebecca Wiseman’s opinion was filed July 17 and certified yesterday for publication.

Brothers sued Shann T. Kern in 1993, seeking a ruling that he was the father of Kern’s daughter, born in 1988. The court determined that he was the father, gave him joint custody and visitation rights, and ordered him to pay $350 a month in child support, an amount that was later increased to $771 monthly.

Brothers is awaiting sentencing for the murders of his wife, mother-in-law, and three children, who were between six weeks and four years old. The five were found murdered in July 2003; Brothers was charged with the murders in April 2004, was convicted, and is to be sentenced Sept. 27.

Jurors returned a death penalty verdict in May. Judge Michael Bush can impose the death sentence, or modify the verdict and sentence Brothers to life imprisonment without possibility of parole.

Brothers was current in his support payments to Kern when he was arrested, but then stopped making them. Upon motion of the county, the commissioner reserved jurisdiction to determine the status of the support obligation following discovery into Brothers’ financial condition.

Little informed county officials that Brothers had been found indigent by the criminal court and that there was “little point” in inquiring further about his finances. But the county later discovered that Brothers had sold his house for a net of more than $128,000, which was delivered to Little, and that $100,000 of that money had been placed in the attorney’s trust account.

Little argued that the support obligation should be reduced to zero because Brothers could not earn income while incarcerated. He also argued that the funds in the trust account were a “true retainer” belonging to him and his law firm, rather than to the client, and thus were not available for the payment of support.

The commissioner reasoned that Brothers could reasonably have earned a five percent return on the assets he liquidated, or could have liquidated, after his arrest, including a car and bank accounts. The judicial officer calculated that amount at $625 per month, and fixed support at $600 per month.

That amount, well in excess of support guidelines, was justified, the commissioner found, because Brothers had no visitation and therefore was spending nothing on the child, his living expenses were being footed by the county, a lesser amount would adversely impact the child’s lifestyle, and Brothers would still have money left over for “reasonable personal expenses” while incarcerated.

The commissioner also ordered Brothers to pay a lump sum of $21,750—the amount was later reduced by more than $4,000 to account for an income tax refund seized by the county—including five months’ of arrears at $771 per month, plus future support up until the child’s 18th birthday. Prepayment of future support was appropriate, the jurist found, in order to prevent Brothers from depleting his resources to pay legal expenses.

 McKnight also rejected the argument that the money belonged to the attorney and not to Brothers, holding that the unearned portion of the retainer belonged to the client. He also rejected the right-to-counsel argument, saying a defendant is entitled to the attorney of his choice only if he can afford him, and that no constitutional violation occurs when the ability to afford counsel is diminished by the enforcement of third-party obligations.

Wiseman, writing for the Court of Appeal, said the commissioner was correct on both the statutory and constitutional issues.

California’s child support laws were substantially rewritten in the 1980s, and Wiseman acknowledged that In re Marriage of Catalano (1988) 204 Cal.App.3d 543, suggests that a support award must be based on actual earnings in the absence of a deliberate effort to avoid obligations.

But more recent cases, the justice wrote, grant broader discretion to the trial courts. Nothing in the statute limits imputation of income to bad faith cases, nor would such a limitation be consistent with public policy, she explained.

As for the right to counsel, the jurist said, “[t]here is no authority for the idea that the Sixth Amendment protects a criminal defendant’s assets from seizure by those with valid claims against them.”

Wiseman rejected the argument that because there was no lien at the time Little was retained, seizure of the funds constituted an unauthorized forfeiture. Since the seized portion of the retainer had not yet been earned when the lien was created, the justice reasoned, the money belonged to Brothers and was properly used to satisfy his obligation.

Brothers, she wrote, “had no right to spend [the unearned portion of the funds] on future services to be rendered by his attorney when a portion of them was owed to someone else.”

The case is Brothers v. Kern, 07 S.O.S. 5063.


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