Bailey v. State, No. 23754
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | CHANDLER; HARWELL |
| Citation | 424 S.E.2d 503,309 S.C. 455 |
| Parties | James D. BAILEY, William D. Sussman and James R. Johnson, Respondents, v. The STATE of South Carolina and Aiken County, South Carolina, a body politic and corporate and political subdivision of the State of South Carolina, and Louis L. Rosen, Director for Court Administration, Defendants, of whom Aiken County, South Carolina, a body politic and corporate and political subdivision of the State of South Carolina is the Primary Appellant, and The State of South Carolina and Louis L. Rosen, Director for Court Administration are Secondary Appellants. Appeal of AIKEN COUNTY, South Carolina. . Heard |
| Decision Date | 05 May 1992 |
| Docket Number | No. 23754 |
Page 503
v.
The STATE of South Carolina and Aiken County, South
Carolina, a body politic and corporate and political
subdivision of the State of South Carolina, and Louis L.
Rosen, Director for Court Administration, Defendants,
of whom Aiken County, South Carolina, a body politic and
corporate and political subdivision of the State
of South Carolina is the Primary Appellant,
and The State of South Carolina and Louis L. Rosen, Director
for Court Administration are Secondary Appellants.
Appeal of AIKEN COUNTY, South Carolina.
Decided Dec. 7, 1992.
Rehearing Denied Jan. 6, 1993.
Page 504
Robert M. Bell and Dennis M. Gmerek, both of Langley, for appellant Aiken County.
Chief Deputy Atty. Gen. Edwin E. Evans and Asst. Atty. Gen. Samuel L. Wilkins, Columbia, for appellants The State [309 S.C. 456] of South Carolina and Louis L. Rosen, Director of Court Admin.
Ronald A. Maxwell, of Aiken, for respondents.
Stuart M. Andrews, Jr., and Daniel J. Westbrook, Nelson, Mullins, Riley & Scarborough, Columbia, for amicus curiae, S.C. Bar.
CHANDLER, Justice:
This Court is today called upon to determine whether compensation shall be paid to attorneys appointed to represent indigent defendants who are charged with murder for which, upon conviction, the death penalty (capital murder) may be imposed.
We reach our decision today fully cognizant of the legal profession's traditional and historic role in the general society. It is a role anchored to the postulate that the practice of law is not a marketplace business or commercial venture but, rather, a profession dedicated primarily to service.
This obligation to service is a lifelong commitment of every attorney which finds its noblest expression in the oath administered upon admission to the Bar:
You will never reject, from any consideration personal to yourself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice.
Abidance in both letter and spirit to this commitment has been a hallmark of the legal profession from the very earliest history of South Carolina. Indeed, 58 years prior to the formation of the Union, the 1731 Colonial Legislature, recognizing the imperative that defendants charged with capital murder be provided the assistance of competent counsel, enacted Act No. 530:
[I]n case any person or persons so accused or indicted shall desire counsel, the court before whom such person or persons shall be tryed, or some judge of that court, shall and is hereby authorized and required, immediately [309 S.C. 457] upon his or their request, to assign to such person and persons such and so many counsel, not exceeding two, as the person or persons shall desire.
Statutes of South Carolina, Vol. III, 1717-1753, Page 286.
South Carolina attorneys now actively and enthusiastically participate in a program sponsored by the South Carolina Bar known as "Pro Bono", which renders free legal services to the poor. The number of attorneys contributing their services to this program places the South Carolina Bar among the top three in the nation.
It cannot be over-emphasized that the litigation addressed by our decision today is borne not of a purpose to repudiate the historic obligation of the legal profession as described above. Rather, it is borne of a dramatic escalation in the burden of effectively representing a capital case defendant, from the moment of the attorney's appointment to the conclusion of the attorney's responsibility.
Page 505
It is an understatement that the very livelihood of many attorneys appointed to death penalty trials is threatened by this burden, a result fundamentally unfair to those so impacted. The record before us demonstrates that capital trials today, as never before, present a myriad of complexities heretofore unknown. For example, until very recent years, most capital trials were, from beginning to end, completed within four days. Today, selection of the jury alone often consumes a week or more.
Notwithstanding, attorneys have never hesitated to fulfill their responsibility to indigent defendants. However, as Justice Newbern of the Arkansas Supreme Court aptly observed in Arnold v. Kemp: "Time changes everything." 1
Indeed it does.
On appeal is an Order which declares unconstitutional the statutory scheme 2 setting the amount of attorney's fees allowed to counsel appointed in capital cases, and also the amount allowed for investigative costs and services in such cases.
[309 S.C. 458] Section 16-3-26(B) provides that in all capital cases, two attorneys shall be appointed to represent an indigent defendant, only one of whom may be the public defender. Fees and costs for these attorneys cannot exceed $5,000 per trial from funds appropriated for the defense of indigents. Section 16-3-26(C) provides a cap of $2,500 from such funds for any expert and investigative services associated with the capital trial. Section 17-3-50 provides that private counsel appointed pursuant to the Defense of Indigents Act shall receive a fee of $15 per hour for in-court time and $10 per hour for out-of-court time for their services, not to exceed the $5,000 cap.
State funding for the Defense of Indigents is set by the General Assembly in the annual Appropriations Act, which contains the following provision:
It is the intent of the General Assembly that any expense incurred in any county for the defense of indigents in excess of the county's share of funds appropriated in this section ... shall be borne by the county. (Emphasis supplied).
1992 S.C.Acts, 501, § 4.6.
Respondents, Attorneys James Bailey and William Sussman, were appointed to represent Leroy Craig, an indigent defendant charged with kidnapping, armed robbery, and murder in a capital prosecution. Respondent James Johnson (now deceased) was a private investigator also appointed to the case. Through the effective representation of Bailey, Sussman, and Johnson, the charges against Craig were dismissed prior to trial.
Mr. Bailey expended 243.75 hours in preparation of the case and 5 hours in court. Further, he incurred out-of-pocket expenses for photographs, postage, xerox copies, and expert fees in the amount of $1,254.65. Mr. Sussman expended 118.3 hours in preparation of the case and 5 hours in court, and also incurred out-of-pocket expenses of approximately $500. Mr. Johnson expended 264.25 hours investigating the case, and incurred $1,101 in travel expenses, $93 in long-distance phone calls, $152.55 in film processing, and $248.69 for out-of-pocket expenses.
Respondents commenced a declaratory judgment action in the Circuit Court requesting payment for the above fees and [309 S.C. 459] costs incurred in Craig's defense, in excess of those provided by § 16-3-26 and § 17-3-50. The case was referred to the Master-in-Equity for final determination.
The Master declared the payment limited by §§ 16-3-26 and 17-3-50 unconstitutional in that it: (1) violates the defendant's sixth amendment right to effective assistance of counsel; and (2) violates the "takings clause" of the United States and South Carolina Constitutions. He awarded Mr. Bailey and Mr. Sussman attorneys' fees at a rate of $85 per hour and Mr. Johnson investigator's fees at a rate of $40 per hour, plus all expenses incurred.
Page 506
DISCUSSION
A. SIXTH AMENDMENT
The Sixth and Fourteenth Amendments of the United States Constitution compel every State to provide...
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Maples v. Dunn, CASE NO. 5:03-CV-2399-SLB
...S. Ct. at 919. And other courts have recognized the impact of poor funding in capital cases on an accused's defense. See Bailey v. State, 424 S.E.2d 503, 508-09 (S.C. 1992)(holding that capital litigation complexity required court-appointed attorneys to receive reasonable compensation from ......
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Evans v. State, No. 93-DP-01173-SCT
...reflects the unique difficulty these cases present as balanced with the attorney's obligation to defend the indigent." Bailey v. State, 309 S.C. 455, 424 S.E.2d 503, 508 (1992). What constitutes "reasonable" compensation is left to the discretion of the trial court in most jurisdictions. In......
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Hyde v. State, No. CR-04-1092.
...violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to United States Constitution and Alabama law. See Bailey v. South Carolina, 424 S.E.2d 503, 508 (S.C.1992) (complexity of capital litigation required court-appointed attorneys to receive reasonable compensation from state and coun......
-
Simmons v. State Pub. Defender, No. 07-0870.
...has influenced the interpretation of a state statute authorizing payment of fees for indigent defense. Specifically, in Bailey v. State, 309 S.C. 455, 424 S.E.2d 503, 508 (1992), the court held that controlling statutes could not be interpreted as establishing absolute maximum remuneration ......
-
Maples v. Dunn, CASE NO. 5:03-CV-2399-SLB
...S. Ct. at 919. And other courts have recognized the impact of poor funding in capital cases on an accused's defense. See Bailey v. State, 424 S.E.2d 503, 508-09 (S.C. 1992)(holding that capital litigation complexity required court-appointed attorneys to receive reasonable compensation from ......
-
Evans v. State, No. 93-DP-01173-SCT
...reflects the unique difficulty these cases present as balanced with the attorney's obligation to defend the indigent." Bailey v. State, 309 S.C. 455, 424 S.E.2d 503, 508 (1992). What constitutes "reasonable" compensation is left to the discretion of the trial court in most jurisdictions. In......
-
Hyde v. State, No. CR-04-1092.
...violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to United States Constitution and Alabama law. See Bailey v. South Carolina, 424 S.E.2d 503, 508 (S.C.1992) (complexity of capital litigation required court-appointed attorneys to receive reasonable compensation from state and coun......
-
Simmons v. State Pub. Defender, No. 07-0870.
...has influenced the interpretation of a state statute authorizing payment of fees for indigent defense. Specifically, in Bailey v. State, 309 S.C. 455, 424 S.E.2d 503, 508 (1992), the court held that controlling statutes could not be interpreted as establishing absolute maximum remuneration ......