With 3 death penalty cases, Weber County is paying hundreds of thousands for defense lawyers

Over the next month, dozens of witnesses will testify in an Ogden courtroom about death row inmate Douglas Lovell, who raped a 39-year-old woman more than three decades ago and later killed her in an attempt to stop her from testifying.

The evidence hearing could pave the way for Lovell to get a new trial — it would be his third for the same heinous crime.

The stakes are high and the cost to Weber County taxpayers is climbing.

The county has so far paid nearly $150,000 to Lovell’s appellate attorneys and investigative experts, according to February estimates filed among court papers.

It’s a bill the county could have avoided.

The Utah Supreme Court ordered this detailed evidentiary hearing after questions were raised about the job performance of one of Lovell’s attorneys back in 2015.

Lovell’s appellate attorney twice asked Weber County Attorney Chris Allred to agree to redo the penalty phase of Lovell’s trial in an effort to save money.

Allred didn’t take the offer.

“It would have been irresponsible to simply assume that the court will find that Lovell’s counsel was ineffective,” he told The Salt Lake Tribune, “thus putting the victim’s family through all the emotional drain of yet another sentencing.”

For years, Utah lawmakers have been debating whether to keep the death penalty. And the costs of litigating these cases are frequently discussed in hearings. Legislative analysts in 2012 estimated that a death sentence and decades of appeals cost $1.6 million more than a life-without-parole sentence.

Weber County doesn’t keep track of how much it has spent to prosecute the case, and lawyers with the attorney general’s office are the ones participating in Lovell’s current hearing. But county officials estimate that it has spent more than $370,000 on defense lawyers and experts for Lovell since his conviction was overturned eight years ago, according to court filings.

People convicted of death penalty offenses are almost universally indigent, meaning that the potentially decades-long appeals are constitutionally required to be provided by public defenders.

Legislators last debated the death penalty in 2018, and it’s expected to be discussed once more during the next legislative session. The lawmaker who sponsored the bill most recently is now a commissioner in Weber County — which is not only funding Lovell’s defense but also paying four lawyers to represent two other defendants facing the potential of the death penalty.

That commissioner, Gage Froerer, said the cost of these cases was a driving factor in his bid to end the death penalty.

“That was one of my concerns and major issues is the cost involved,” he said, “and the results usually aren’t very productive in solving the issues for society or the victim’s family.”

Froerer wasn’t a commissioner when the county approved defender contracts for the three cases. But he said they will be looking into the county’s funding mechanism in budget meetings this fall.

There are two ways in which Utah’s 29 counties fund defense lawyers in death penalty cases: Most pay into a state-managed fund, a sort of insurance policy from which officials can request money if they have a death penalty-eligible case.

But Weber County is one of five — along with Salt Lake, Summit, Wasatch and Utah — that don’t pay into the fund. Instead, each of those counties uses its own money to contract with individual defense attorneys.

Weber County officials have flirted with the idea of paying into the state-managed fund but have always decided to bear the costs. Bryan Baron, a civil attorney for the county, said in a recent deposition that Weber would have been required to pay in $300,000 initially to be part of the multicounty effort, then $100,000 every year after.

“And so faced with that large number, the county decided to self-fund capital cases,” Baron said. “The commissioners believed if they set some money aside, they would be better off paying for those cases themselves.”

A transcript of Baron’s deposition was filed as part of a lawsuit lodged against the county by Samuel Newton, an appellate attorney who sued after he was fired for speaking publicly about the lack of funding in Utah death penalty cases.

Newton had represented Lovell in his appeal but withdrew from the case, saying payment issues were causing stress-related medical issues and a conflict of interest. The county then ended another contract he had to represent other defendants on appeal, deeming Newton’s public comments “harmful to the county’s reputation.”

County officials lamented that Newton spoke with The Tribune in email exchanges, with Allred, the county attorney, writing that he was “sick of this BS” and wanted to “expose” that Newton was making hundreds of thousands of dollars from Lovell’s contract and another unrelated death penalty case he was handling in Salt Lake County.

“All of this for a defendant who admitted to killing a person,” wrote Dave Wilson, a now-retired deputy attorney. “The world must laugh at our stupidity.”

According to documents in this lawsuit, the county attorney’s office approached every criminal defense attorney in Utah who had filed two or more criminal appeals in a two-year period to find a new attorney to represent Lovell. The office got only one applicant, according to documents. That was Colleen Coebergh. She got the job and is now representing Lovell in his current hearing.

In 2017, Lovell expressed frustration with the number of attorneys he has been assigned over the years and how little they have been paid.

In one letter to the judge, he listed many of the attorneys who have represented him over the years.

There was a lawyer in 1992 who represented Lovell for $49, whom he met once or twice. There was another who represented him sometime in the 1990s, but Lovell doesn’t remember ever seeing him in the courtroom. And he did eventually have two whom he liked, but they asked to be taken off the case because it was too complicated and they weren’t qualified.

“It’s to [the attorney’s] advantage to do as little work as possible, to talk to me as little as possible,” Lovell said in a 2017 hearing. “Because it’s getting into that money thing. That’s happened time after time after time on this case.”

Along with Lovell’s appeal, Weber County is shouldering the cost of two other death penalty cases. Miller Costello and Brenda Emile are accused of burning, beating and starving their 3-year-old daughter in 2017, resulting in her death. Their trial is set for 2020.

The county has approved contracts that max out at $100,000 for defense costs for each of the defendants.

Could Weber County afford another death penalty case if one were to happen? Froerer said the county would have no other choice but to pay for those costs — it’s a constitutional right — but at some point, he said it may come to cutting other items from the budget, like parks or roads, to fund it.

Utah prosecutors are seeking the death penalty in only four cases: two in Weber County, one in Salt Lake County and another in Utah County. Along with Lovell, another death row inmate, Douglas Carter, recently had his case remanded back to the district court in Utah County.

(Christopher Cherrington | The Salt Lake Tribune)

Lovell’s current hearing is focused on whether his trial attorney, Sean Young, adequately contacted and prepared witnesses who wanted to testify favorably on Lovell’s behalf. He was assigned 18 witnesses, according to Lovell’s appeal, but only two said they were contacted by Young before the trial.

Lovell also argues that Young did not object to interference from The Church of Jesus Christ of Latter-day Saints, which limited the number of prison bishops who testified at Lovell’s trial.

At the end of the hearing, a judge will rule on whether Young “performed deficiently,” and Lovell’s attorney will use that finding as she mounts a claim of ineffective assistance of counsel. The state’s highest court could reject that claim, or it could order Lovell should get a new trial.

Lovell pleaded guilty to killing Joyce Yost in 1993 but was allowed to withdraw his plea in 2011 after the Utah Supreme Court ruled the judge should have better informed him of his rights during court proceedings. That led to his 2015 trial.

He is one of eight men currently on Utah’s death row but is nowhere near execution. A Monday ruling from the 10th U.S. Circuit Court of Appeals puts death row inmate Ron Lafferty the closest to a firing squad, with state officials indicating his execution could be months away.

Lafferty, like Lovell, committed his crimes in the 1980s. Lafferty is on death row for the 1984 deaths of his sister-in-law and her 15-month-old daughter.