An appellate attorney is out of a job after speaking publicly about a lack of funding in a death penalty case — comments that Weber County officials deemed “harmful to the county’s reputation.”
Defense attorney Samuel Newton had been representing Douglas Lovell, who was sentenced in 2015 to be executed for killing 39-year-old Joyce Yost in 1985 to keep her from testifying that he had previously raped her.
Newton, who is based in Montana, had a contract with Weber County to represent the death row inmate in his appeal and was contracted to handle all of the other appeals for indigent criminal defendants in the county.
He withdrew from Lovell’s case in September, saying payment issues were causing stress-related medical issues, as well as a conflict of interest.
Newton said at that time that a conflict was created after the payment dispute left him feeling like he “had to choose” between supporting his family financially and zealously representing his client.
Now, Newton said he also has lost his contract to handle other appeals for Weber County defendants who can not afford their own attorney — a contract which he has had for about seven years and makes up the bulk of his law practice.
In a letter to Newton dated Oct. 26, Weber County Commissioner James Harvey wrote that county officials are terminating Newton’s contract to handle those appeals, effective Jan. 31.
“While we have appreciated your hard work and dedication,” Harvey wrote, “this past year you have made various representations to the media and to the court that have been untruthful and harmful to the county’s reputation.”
Harvey echoed those sentiments in a Friday interview, but he declined to elaborate on specific untruthful statements he believes Newton has made.
Harvey said he felt Newton was spending too much time trying to create relationships with his clients in prison, when “all the state wants to know is if the appropriate decision has been made” in a conviction.
“I very much care about the character of Weber County and very much want to be fiduciarily responsible for taxpayer funds and how they‘re spent,” Harvey said. “I don’t agree with giving a guy an open checkbook because he wants to create a relationship with a convicted felon on the taxpayers’ dime.”
Newton has expressed concerns over payment both in court and in recent Salt Lake Tribune news articles. He also penned a commentary about how the capital punishment system is unfair to defendants and attorneys that was published in The Tribune op-ed section.
The funding dispute centered around a now-delayed multiday evidentiary hearing, where witnesses were to be questioned about what work Lovell’s trial attorney did on the case — and whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting what bishops who worked with Lovell at the prison could say on the stand during the penalty phase of trial.
Lovell is currently appealing his conviction to the Utah Supreme Court, which had sent the case back to the district court for the evidentiary hearing.
Newton had argued in court papers that the hearing would require hundreds of hours of investigation and preparation, which he estimated would cost more than $37,000. The county, however, had authorized additional payment of only $15,000. The attorney said concerns about inadequate pay on Lovell’s case and another death penalty appeal was causing him stress-related heart problems.
County officials have disagreed with Newton’s assertions, saying that a “soft cap” for funding was in place, but Newton could have asked for more money if he could show it was needed.
“We had never given him a firm amount, saying, ‘We won’t pay you anymore than this,’ ” said Deputy Weber County Attorney Bryan Baron, who works in the county’s civil division and handles contracts.
In a June email to Newton, Baron wrote that the commissioners were concerned that Newton was overbilling in Lovell’s case and questioned why he was communicating with the defendant so often.
“The consensus from the meeting was that unless significant changes are made to the invoices and future billing practices, the county needs to look for another attorney for future appeals,” Baron wrote in the email, which was filed among court papers. “Again, they don’t have a problem with the quality of your work. Their concern is with the amounts that you are billing and the items that you are billing them for.”
Based on this email, Newton said this week that it was not entirely unexpected that the county decided to pull the plug on his contract for other appellate work.
“I’m disappointed that the county terminated my contract, where I have had no performance issues,” Newton said. “I never believed I said anything untrue and was only zealously representing my client and fighting for the resources he needed to defend his life.”
Weber County has hired a new attorney, Colleen Coebergh, to take over Lovell’s appeal. The county contracted a “soft cap” of $100,000 for Coebergh, according to Commission minutes. Newton’s cap had been $75,000, according to court motions.
Anyone who is charged with a crime that includes the possibility of jail time — in Utah, that is anything more serious than an infraction — is entitled to an attorney, even if they can’t afford one. For death penalty cases, those attorneys must be experienced and qualified under court rules.
Utah is one of several states in the nation that delegates the responsibility to provide defense lawyers to individual counties and cities.
Most counties in Utah pay into a state-managed fund for death penalty cases, a sort of insurance policy from which officials can request money if they have a death penalty-eligible case in their county.
Weber County, however, is one of five counties that does not participate in this fund — instead, it uses its own money to contract with individual attorneys.
According to a 2015 report by the Sixth Amendment Center, which was contracted by the state to review its public defender system, this setup can oftentimes lead to a number of conflicts. First, flat-fee contracts incentivize lawyers to do less work. But it can also cause problems when the lawyers are selected by, and contract directly with, county officials.
In Weber County, while a civil attorney drafts contracts and a criminal attorney prosecutes a case, they all are employed by the county attorney’s office — and ultimately have the same boss: Weber County Attorney Christopher Allred.
Harvey said the commission consulted with Allred in making their decision to terminate Newton’s contract. It was a “team effort,” Harvey said Friday.
Allred did not respond to a request for comment.
Lawmakers in 2016 created an Indigent Defense Commission to help address these and other problems with the state’s public defender system. The commission also was given money to dole out to counties in need, to help them fund indigent defense properly.
But because Weber County has not asked for any of that grant money, neither the Indigent Defense Commission nor any other state entity has authority over how it contracts with its public defenders.
“This situation stresses the importance of having independence in the public defender function,” said Joanna Landau, executive director of the Indigent Defense Commission. “[It is] a constitutional obligation that should not be funded or controlled by prosecutor or judiciary.”
Newton said his contract loss illustrates the problems with public defenders being funded at a county-level.
“Criminal defendants are entitled to independent attorneys who aren’t afraid they will lose their livelihood if they advocate for their clients,” he told The Tribune. “We can’t have a fair system of justice unless both sides are totally independent of each other.”