ANDERSON — Nearly four years after prosecutors brought murder charges against Rex David Delph, his longtime public defenders have withdrawn from the case, saying the county is unwilling to pay about $95,000 for their services and experts to testify at trial and further review evidence. It’s the latest twist in the years-long legal saga, and possibly jeopardizes Delph’s chances of a fair trial.

Attorneys Zaki Ali and Joseph Cleary filed a joint motion to withdraw from the case Thursday. Madison Circuit Court Judge Fredrick Spencer asked the two to withdraw in late June if they couldn’t negotiate with the Madison County Public Defender Board to lower the mounting costs associated with Delph’s defense.

Letters and e-mails included in court filings reveal the events that led up to the two defense attorneys withdrawing from the case only a few months before Delph’s trial was to begin.

The cost

The Public Defender Board — attorneys Max Howard, Ron Fowler and Ted Smith — refused June 23 to pay the nearly $95,000 estimated in further costs to defend Delph at trial. About $150,000 has already been spent over the last four years. In a letter to Spencer, Ali and Cleary said any negotiations are impossible because of the costs associated with anticipated expert testimony and their attorneys fees.

“With all due respect, requesting that we negotiate something with the Public Defender Board is essentially a request that we compromise Mr. Delph’s right to effective assistance of counsel,” the attorneys write. “I think you would agree our two week estimate for trial is reasonable. We do not see any way to negotiate as to that.

“Similarly, we believe it would be unethical to negotiate to accept some type of limitation on our ability to prepare for a trial,” the letter continues. “We provided the board with our good faith estimate of how long we would need to prepare for a trial of this magnitude. Obviously if we ended up needing less time we would not bill for our estimated time. However, we cannot negotiate some type of cap on our ability to prepare. Our current hourly fee, $65/hour, is essentially as low as it can go.”

Ali had represented Delph since shortly after prosecutors charged him with arson and two counts of murder, alleging he set the May 2004 house fire that killed his wife, Robynn, 41, and son, Joshua, 9. Cleary was brought in as co-counsel several months after Ali because of the complexity of the case. Delph, 44, is tentatively scheduled to stand trial beginning Oct. 9. He could not be reached for comment for this story.

Ali was previously a salaried public defender, paid about $39,000 annually, before resigning earlier this year. He has since become a salaried public defender in Delaware County, but remained on the Delph case, earning a standard $65 per hour, said David Happe, chief administrative public defender. Cleary makes the same hourly rate.

In Ali and Cleary’s estimate to the Public Defender Board, they say it will likely cost $32,500 in attorneys’ fees alone for the next three months to continue the Delph case.

Expert review

The high end of their estimate pegged costs of expert review of evidence, including expert testimony at Delph’s trial, at about $62,000, another figure rejected by the board.

But, in an e-mail sent to Ali, one of the defense experts who reviewed some of the evidence, and had been expected to testify, say the estimate is small compared to the “unlimited resources” of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, which reviewed evidence for prosecutors.

“The relatively high cost of my analysis is the result of the massive amount of modeling and analysis that has been done by the state,” Douglas Carpenter, vice president and principal engineer for Columbia, Md.-based Combustion Science & Engineering, writes in the e-mail.

“The ATF has virtually unlimited resources to bring to bear in a specific case, unlike most defendants and private consultants,” the e-mail continues. “This case provides an example of this. I would like to compare my invoices to what it has cost the taxpayers to support the ATF’s work in this case ... This is a very important case due to the high stakes and there should be equal resources available (or they should not be limited) to the defense that were afforded the state.”