By Shawn McGrath
July 06, 2008 10:18 pm
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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Nearly four years after prosecutors brought murder charges against Rex David Delph, his longtime public defenders have withdrawn from the case, saying the county is unwilling to pay about $95,000 for their services and experts to testify at trial and further review evidence.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.”
Contacted Thursday, Carpenter said he couldn’t provide an estimate of what the ATF likely spent on the case, including man hours and overhead. He declined further comment. An ATF representative couldn’t be reached.
The chief administrator
Happe said Thursday that Ali and Cleary’s funding estimate amounts to about half of the Public Defender Board’s annual $300,000 budget.
“The Board’s decision was based on the resources available, and is of course not at all related to your representation,” Happe writes in an e-mail to Ali dated the day after the funding request was declined. “Our annual budget for professional services is $300,000, which barely pays for necessary services in a typical year. At the halfway point in 2008, we’ve spent half of our budget. Spending $120,000 more on this individual case would make it impossible to provide competent services to the remaining hundreds of indigent defendants facing felony charges.”
Happe said the funds already spent on Delph’s defense accumulated over several years and were spread out over several budget cycles. The latest request came all at once, making it too much for this year’s budget to handle.
“Nobody budgets for expenditures of this level,” Happe said Sunday. “At the end of the day, there just weren’t enough coins in the purse.”
In the e-mail to Ali, Happe says it’s up to Judge Spencer to decide how to move forward: either paying the expenses from the Circuit Court’s budget, mandating the payment or appointing salaried county public defenders and “restricting funds for experts.”
Spencer decided to appoint new attorneys, naming public defenders John Reeder and Bob Cowles to the case on Thursday.
Cowles said Sunday he hadn’t yet reviewed the case, and doesn’t know what experts Delph has retained or prosecutors have consulted. He also wasn’t yet sure if the change in representation would cause Delph’s trial to be delayed yet again.
“I haven’t seen one thing in the file,” Cowles said. “I’ll be on the ground running this week.”
Ongoing case
The change in attorneys is the latest turn in the ongoing case.
Firefighters were called to the Delph family home at 1307 W. Second St. on May 17, 2004, and found the building engulfed in flames. Firefighters found Robynn Delph and Joshua unresponsive in Joshua’s bedroom. The two were taken outside the home, but attempts to revive them were unsuccessful. They were pronounced dead at the scene and it was later determined they died of smoke inhalation.
Investigators alleged Delph killed his wife and son by burning down the home to collect insurance. They also raised allegations that the couple was having marital difficulties. Prosecutors charged him with arson and murder the next month.
Delph was released from the Madison County Jail on his own recognizance in January 2006. Spencer ordered the charges against Delph dropped later that year, saying prosecutors took too long to bring him to trial. Prosecutors appealed the dismissal not long afterward.
The Indiana Court of Appeals reversed Spencer’s decision, however, and said prosecutors still had 128 days to try Delph. The Indiana Supreme Court declined to review the appeals court’s decision.
Now there’s a good chance Delph’s day in court could be delayed further.
“I don’t know,” Ali said Sunday. “I’d assume his new counsel will move for a continuance, and the trial will continue accordingly.”
What’s next?
Rex David Delph is scheduled to stand trial in Madison Circuit Court beginning Tuesday, Oct. 7, on arson and murder charges. He’s accused of setting a house fire that killed his wife and son. But with the recent withdrawal of his defense attorneys from the case, the trial will likely be delayed again.
The cost of defense
The state has spent about $150,000 defending Rex David Delph against charges of arson and murder since the counts were filed against him in June 2004. The costs have included:
n $18,500, attorney fees for co-defense counsel Joseph Cleary
n $103,400, Combustion Science & Engineering to analyze evidence
n $18,200, Litigation Specialists
n $4,300, Graham Detective Services
n $6,200, court reporters.
Total: $150,600
(Note: The total does not include attorney Zaki Ali’s salary when he worked as a Madison County public defender)
More expenditures?
Rex David Delph’s attorneys asked the Madison County Public Defender Board to approve the following additional expenses. The board turned down the request in late June, effectively putting in motion a series of events that led his attorneys to withdraw from the four-year-old case only months before Delph was to stand trial. The attorneys asked for:
n $32,500, attorneys fees for Zaki Ali and Cleary
n $18,500-$21,600, Scientific Fire Analysis, for expert testimony and case review
n $34,200-$40,800, Combustion Science & Engineering, for expert testimony and case review.
Total: $85,200-$94,900
(Note: Figures have been rounded to nearest $100)
— Sources: Madison Circuit Court records, court filings
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