Post by CCADP on Aug 13, 2005 21:23:20 GMT -5
Judge rules county doesn't have to pay
By Jennifer Harr, Herald-Standard
08/13/2005
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James VanDivner cannot ask Fayette County taxpayers to pick up the tab for experts to testify in what could be his death penalty case, a judge ruled Friday.
Since the 55-year-old Point Marion man's privately retained attorney hasn't shown any legal authority to do it, Judge Steve P. Leskinen ruled the county should not have to pay for the fees.
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"If the defendant is capable of securing the services of a paid attorney, there is no reason for the public to pay his expert witnesses and investigators," Leskinen wrote.
VanDivner's family members are paying for the services of Pittsburgh attorney Leonard Sweeney. He filed motions asking that the county pick up the costs of various experts, including psychologists, pathologists and a private investigator, for a case in which prosecutors are seeking the death penalty if VanDivner is convicted of first-degree murder.
State police allege that VanDivner fatally shot Michelle Cable, his ex-girlfriend, behind her left ear at her Grindstone home July 5, 2004. He is also accused of shooting Cable's son, Billy, who survived.
Leskinen noted in his opinion that VanDivner's family has paid less than $10,000 to retain Sweeney in the case.
"In the absence of contrary authority, when private counsel accepts a retainer for criminal defense, there is an implied representation that the retainer will cover attorney's fees, costs and witness fees. If the client is unable to pay a retainer large enough to cover those items, the attorney should not endeavor to represent that client," the judge wrote.
He also likened a privately retained attorney's request for the county to pay for experts to expecting taxpayers to pitch in to help someone with a new car.
"A person with a new car cannot claim to be indigent and force the county to pay for gas and maintenance, or for that matter, cannot force the county to buy him a new camping trailer to go with the car," Leskinen wrote.
His opinion also noted that Sweeney never offered an explanation as to why specific expert witnesses were necessary on VanDivner's behalf, and that motions for the experts were filed beyond the deadline to do so.
In the final paragraph of his two-page order, Leskinen reiterated an earlier ruling that VanDivner's case would go to trial at the end of the month, presumably with jury selection beginning Aug. 29.
"It is not for either (prosecution or defense) to modify the schedule of trials by failing to proceed without any valid excuse or good explanation. The fact that the defendant is charged with an offense punishable by death does not permit him or his counsel to disregard settled procedures and timetables," Leskinen wrote.
©The Herald Standard 2005
By Jennifer Harr, Herald-Standard
08/13/2005
Email to a friend Voice your opinion Printer-friendly
James VanDivner cannot ask Fayette County taxpayers to pick up the tab for experts to testify in what could be his death penalty case, a judge ruled Friday.
Since the 55-year-old Point Marion man's privately retained attorney hasn't shown any legal authority to do it, Judge Steve P. Leskinen ruled the county should not have to pay for the fees.
Advertisement
"If the defendant is capable of securing the services of a paid attorney, there is no reason for the public to pay his expert witnesses and investigators," Leskinen wrote.
VanDivner's family members are paying for the services of Pittsburgh attorney Leonard Sweeney. He filed motions asking that the county pick up the costs of various experts, including psychologists, pathologists and a private investigator, for a case in which prosecutors are seeking the death penalty if VanDivner is convicted of first-degree murder.
State police allege that VanDivner fatally shot Michelle Cable, his ex-girlfriend, behind her left ear at her Grindstone home July 5, 2004. He is also accused of shooting Cable's son, Billy, who survived.
Leskinen noted in his opinion that VanDivner's family has paid less than $10,000 to retain Sweeney in the case.
"In the absence of contrary authority, when private counsel accepts a retainer for criminal defense, there is an implied representation that the retainer will cover attorney's fees, costs and witness fees. If the client is unable to pay a retainer large enough to cover those items, the attorney should not endeavor to represent that client," the judge wrote.
He also likened a privately retained attorney's request for the county to pay for experts to expecting taxpayers to pitch in to help someone with a new car.
"A person with a new car cannot claim to be indigent and force the county to pay for gas and maintenance, or for that matter, cannot force the county to buy him a new camping trailer to go with the car," Leskinen wrote.
His opinion also noted that Sweeney never offered an explanation as to why specific expert witnesses were necessary on VanDivner's behalf, and that motions for the experts were filed beyond the deadline to do so.
In the final paragraph of his two-page order, Leskinen reiterated an earlier ruling that VanDivner's case would go to trial at the end of the month, presumably with jury selection beginning Aug. 29.
"It is not for either (prosecution or defense) to modify the schedule of trials by failing to proceed without any valid excuse or good explanation. The fact that the defendant is charged with an offense punishable by death does not permit him or his counsel to disregard settled procedures and timetables," Leskinen wrote.
©The Herald Standard 2005