County and attorneys work to contain defense costs
January 1, 2013
Sept. 20: Phil and Ellen Lester, Susan Laferte and Jon Blinder arrested.
Sept. 21: Defendants appear in Nevada County Superior Court, and public defenders are appointed for the Lesters and Laferte; bail is set at $600,000.
Sept. 24: Ellen Lester pleads not guilty.
Oct. 4: Judge denies request by Phil Lester and Laferte to lower bail. Ellen Lester is released on her own recognizance.
Oct. 18: The Public Defender’s Office declares a conflict.
Oct. 23: Blinder arraigned.
Oct. 25: Bail reduced for Phil Lester and Laferte, to $150,000. After the bail source is OK’ed on Oct. 29, both post bail.
Oct. 30: Blinder pleads not guilty; the date for the preliminary hearing is continued to March 12.
Nov. 19: Prosecution dismisses all charges against Ellen Lester, but could re-file.
Dec. 13: Laferte files a motion for a new attorney, which is denied.
— Liz Kellar, staff write
Russian novels have been thrown. Accusations
have been hurled. Barbs have been traded.
But as heightened as some of the courtroom shenanigans have been in the three months since the California Attorney General's Office arrested Phil and Ellen Lester, Susan Laferte and Jonathan Blinder and charged them with fraud, the mounting cost for Nevada County to defend the case is no laughing matter.
Blinder has retained private counsel, but the Lesters and Laferte declared themselves indigent and in need of a public defender's services. Charges currently have been dropped against Ellen Lester but might be refiled at a later date, according to state Deputy Attorney General Maggy Krell.
Through mid-December, the direct cost to Nevada County reached an estimated $35,000, County Executive Officer Rick Haffey said.
“It’s offensive to think that poor people are paying to defend these formerly rich people in order to get restitution for other rich people.”
— Nevada County Public Defender Don Lown.
The total does not include the indirect costs incurred by the county, including staff time by the CEO's office and the cost of housing Philip Lester and Laferte at Wayne Brown Correctional Facility for a little more than a month.
Haffey has estimated the annual cost could reach $600,000 in a case that could last more than a year.
"It's offensive to think that poor people are paying to defend these formerly rich people in order to get restitution for other rich people," said Nevada County Public Defender Don Lown. "The county is trying hard not to lay people off — and now here we are, representing former millionaires. It's very frustrating."
According to Haffey, the county has contacted State Sen. Ted Gaines' office, the California State Association of Counties and the Regional Council of Rural Counties for reimbursement assistance.
"We have been requesting a meeting with the AG's office since October and have been unsuccessful," said Assistant County Executive Officer Alison Lehman. "They have been unresponsive."
According to Lehman, the county is hoping to discuss the fiscal impact that the case would have and to talk about grant funding that the Attorney General's office might have to provide fiscal relief.
The public defender is like any other attorney and is appointed for someone who is indigent and needs representation, Lown explained.
Due to his office declaring a conflict of interest, however, "conflict counsel" had to be appointed.
"We use appointed attorneys when our office cannot represent a client without a conflict of interest," Lown said. "There are a number of attorneys on the list, and the court appoints them; appointment is based on attorney experience and the complexity of the case. The court has an eye for efficiency, for attorneys who are competent and who won't run costs up unnecessarily."
Those attorneys accept a set rate, a lower rate of pay than they would normally charge, said Nevada County Superior Court Presiding Judge Tom Anderson. The pay scale for conflict counsel is $70 an hour, although Laferte's counsel, Greg Klein, has a contract with the county that pays him $75 an hour.
Phil Lester is represented by former Deputy District Attorney Ken Tribby; a recent bid by Laferte for a new attorney to replace Klein was rebuffed by Superior Court Judge Candace Heidelberger.
"Everybody's bill gets reviewed by a judge to see if the hours (billed) are reasonable," Anderson said.
It does cost more to use conflict counsel on an hourly basis, but, as Lown pointed out, if he were using his staff, he would have to assign two full-time attorneys to the case. The pay scale for deputy public defenders, according to the Nevada County website, starts at nearly $6,000 a month and tops out at just under $9,000 a month.
"We would have to hire more attorneys," Lown said. "If the case lasts more than a year, they would become permanent hires. It could end up costing the county a lot more."
Lown said his primary focus is in seeing the case handled efficiently and appropriately but that his role is an informal one.
"I'm not going to step on (the attorneys') toes, but I will do what I can within a legitimate perimeter," he said. "I can only go so far — I can't interfere with attorney-client privilege.
"I'm trying to keep costs in line," he added. "The citizens of the county have a legitimate interest in spreading the costs around."
Custody had been an issue, and it made it a lot easier to watch costs when the defendants all were released, Lown said. The county also got proactive and secured the attorneys a "war room" at the courthouse so they could work together and share a single copy of the discovery.
Cooperation ameliorates costs
The county's initial cost estimates could be lowered by a variety of factors, of course, especially if Krell opts not to refile charges against Ellen Lester, whom Lown described as a "bit player" in the overall case.
And an oft-referred-to figure of more than 400,000 pages of discovery documents that the attorneys have to wade through — which is what prompted Klein to hurl a representative copy of "War and Peace" across the courtroom — is not likely to end up being quite that much.
"We're doing our level best to be as frugal as possible," Tribby said. "We understand the economic impact. Without jeopardizing our clients, we're watching our billable hours, watching our expenses."
Tribby noted the county has been cooperative in providing what the attorneys need, supplying the "war room" with furniture, a surplus computer, a telephone, a copier and a printer.
"It's pretty Spartan, and that's fine," Tribby said. "It's warm and it's accessible and that's all we need."
Tribby said Lester and Laferte have been doing a lot of "sifting" through the discovery provided by Krell but noted they will have to read at least 1,250 pages of the reports generated by the Attorney General's investigator.
"I want to emphasize that we're doing our damnedest to keep it as straightforward as we possibly can," Tribby said. "We have not run out and printed 500,000 pages of documents."
There is a fine line the attorneys must draw in cooperating at this level, Tribby added.
"We have made it clear that should some distinct conflict appear that we can't get over, we would deal with that … we are going to cooperate until we get to the point where we can't," he said.
According to Klein, the expenses have been minimal to date.
"Initially, we thought we would have to print out all the discovery, but that wasn't necessary," he said.
But the sheer number of victims could bog the process down as the case moves closer to trial, Klein said.
"There are 20 victims, and they would be on the stand for a long time," Klein said. "A trial could take two months."
Lester, Laferte and Blinder are set to return to court Jan. 17 for a felony conference; a preliminary hearing into the evidence has been scheduled for March 12.
To contact Staff Writer Liz Kellar, email email@example.com or call (530) 477-4229.
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