Tuesday, January 6, 2009
S.C. Rejects Claim That Fee Arrangement Impacted Defense
By KENNETH OFGANG, Staff Writer
A capital defendant was not prejudiced by his court-appointed lawyer’s agreement to represent him for a flat fee, nor by the fact that the attorney was under personal financial pressure when he took the case, the state Supreme Court ruled yesterday.
The justices unanimously upheld Keith Zon Doolin’s conviction for the murders of two Fresno prostitutes in 1995, and affirmed the death sentence by a vote of 5-2. He was also convicted of the attempted murders of four other sex workers, who indicated in their testimony that Doolin did not want to pay for their services.
Doolin was linked to the shootings by ballistics evidence showing that three of the shootings, including the fatal ones, were committed with a gun that he owned, and that another victim was shot with a gun owned by his sister, with whom he shared a residence at the time. In addition, tire tread evidence suggested that Doolin’s truck was at the scene of two of the shootings.
Doolin, who denied all of the charges, was represented at trial by Fresno attorney Rodolfo Petilla, who was appointed after the public defender declared a conflict early in the case. Petilla was compensated under a flat fee system, whereby he agreed to handle the case for $80,000, including investigative and expert witness costs, with the understanding that he could apply for additional funds if those ancillary costs became excessive.
The ancillary costs wound up totaling less than $9,000, and Petilla did not seek additional funds.
Doolin argued on appeal that the flat-fee agreement created a conflict of interest that discouraged his counsel from adequately investigating the case and from calling experts who could have challenged the testimony of the prosecution’s experts.
But Justice Carol Corrigan, writing for the Supreme Court, said Doolin failed to show that he suffered prejudice.
Corrigan explained that the ballistics evidence could not be refuted, the tire tread evidence was of so little importance that refuting it would only have made matters worse by calling extra attention to it, and DNA evidence would have offered little of benefit to the defendant because Doolin shot his victims—at least the four who survived—without having sex with them or used a condom.
Corrigan also rejected the contention that Fresno Superior Court Judge James Quaschnick erred in allowing the prosecutor to impeach the defendant’s mother, who testified as an alibi witness, with evidence that she had misrepresented herself as a registered nurse. Donna Doolin Larsen invoked the Fifth Amendment seven times rather than answer questions about the subject on cross-examination.
Corrigan said the impeachment was allowable within the judge’s discretion. As for any prejudice resulting from Larsen invoking the privilege against self-incrimination in front of the jury, the justice noted that the issue had come up before Larsen was called but that Petilla failed to request a hearing outside the jury’s presence that could have avoided the problem.
The justice also noted that the jury was admonished not to draw any negative inference from the invocation of the privilege.
Corrigan was joined in her opinion by Chief Justice Ronald M. George and Justices Marvin Baxter, Ming Chin, and Carlos Moreno.
Justice Joyce L. Kennard, writing for herself and Justice Kathryn M. Werdegar, dissented from the affirmance of the death sentence.
The justice noted that Petilla had originally estimated that investigative and expert costs would run about $60,000, yet ultimate spent a small fraction of that amount. Since he was allowed to keep as much of the $80,000 total as was left after expenses, there was “a built-in incentive for counsel to spend as little as possible on the defense so he could pocket more money,” Kennard wrote.
While there may have been tactical reasons for not spending more money on the defense at the guilt phase, the jurist went on to argue, there was no possible justification for skimping on the penalty phase expenditures. “Consequently, unlike the majority, I am of the view that the fee agreement in question violated defendant’s right to counsel, thus requiring reversal of the sentence of death,” she wrote.
Because the county was a party to the conflict, since it structured the compensation agreement, prejudice should be presumed, Kennard went on to assert.
The case is People v. Doolin, 09 S.O.S. 9.
Copyright 2009, Metropolitan News Company