IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION FOR ADEQUATE COMPENSATION OF COUNSEL

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and pursuant to the Louisiana Constitution, and such other law as may be set forth below, to allow reasonable compensation of counsel for those who represent Mr. CLIENT. In support of his motion, Mr. CLIENT states as follows:

JOHN CLIENT has moved that this Court appoint E. DANIEL-BARRY and CLYDE CHURCHILL to represent him in this case. His case is an extremely complicated one. Counsel seek a reasonable hourly fee for their services commensurate with the need to compensate counsel both for out-of-pocket overhead costs, and a degree of compensation for time expended in representing Mr. CLIENT.
A. This Matter Should be Considered Ex Parte
1. As with the matter of appointment of counsel, because this Motion involves the matter of counsel for the accused and relates to the defense function, it is not an issue in which the District Attorney prosecuting Mr. CLIENT has standing or an interest. The District Attorney has no proper place in determining or influencing who shall represent the accused he prosecutes, any more than he may properly influence which experts provide consultation with the defense. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 82, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (showing of need for defense expert funds must be ex parte).
2. Mr. CLIENT has not been asked to tell the District Attorney which assistants he should or may use to prosecute the case; nor does he presume to say how much they should be paid. Likewise, the District Attorney should not say what compensation counsel for the defense should receive.
3. Indeed, the law is clear that the appointment of counsel is solely a function of the Court, and the prosecuting attorney has no role in the selection of counsel. See Birch v. Mazander, 678 F.2d 754 (8th Cir. 1982); Washington v. Estelle, 648 F.2d 276 (5th Cir. 1981); Banks v. United States, 614 F.2d 95, 97-98 (6th Cir. 1980); Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir. 1978). Therefore, the decision must be made ex parte.
4. At the very least, Mr. CLIENT's adversary (the District Attorney) should be excluded, and the attorney who represents the parish in its financial dealings should be permitted to be present, on the condition that he or she is forbidden from revealing any of the confidential matters that may be discussed with this Court.
B. Wigley Certification
1. This Court must follow certain procedures in the appointment of counsel. See State v. Wigley, 624 So. 2d 425 (La. 1993). The Wigley Court found "that in order to be reasonable and not oppressive, any assignment of counsel to defend an indigent defendant must provide for reimbursement to the assigned attorney of properly incurred and reasonable out-of-pocket expenses and overhead costs." Id. at 429. Counsel's hourly overhead costs are estimated to be the following: E. DANIEL-BARRY $42.75 per hour; CLYDE CHURCHILL, $38.80 per hour.
2. Counsel each commit far more than the required fifty or one hundred hours of pro bono work each year. E. DANIEL-BARRY has averaged 36 hours of pro bono work per month in her role as a volunteer counsel for the local churches, as well as her other court-appointed criminal work. CLYDE CHURCHILL spends an average of 28 hours per month pro bono work without taking into account any of the commitment that is required of him in this case. For this reason, then, Wigley mandates the payment of an attorney's fee on top of the overhead costs. See Wigley, 624 So. 2d at 429. This fee should not be less than $40.00 per hour which, added to the overhead cost, would place Ms. DANIEL-BARRY's hourly rate at a very reasonable $82.75, and Mr. CHURCHILL's at $78.80. See Blum v. Stenson, 465 U.S. 886, 890, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984) (approving court-ordered fees of $95 and $105 per hour in a medicaid suit a decade ago).
3. There are other costs of the defense in this case that can only be detailed ex parte as the defense prepares for trial. See, e.g., State v. Langlois, 605 So. 2d 1155 (La. 1992), after remand, 620 So. 2d 854 (La. 1993) (mandating the provision of $5,000 for defense experts); State v. Carmouche, 553 So. 2d 467 (La. 1989) (eye witness identification expert); State v. Carmouche, 527 So. 2d 307 (La. 1988) (neurologist & serologist).
4. Under Wigley the lower court's duty is clear: It is "the district judge's responsibility to determine before he appoints counsel that funds sufficient to cover the anticipated expenses and overhead are likely to be available to reimburse counsel. . . . If the district judge determines that funds are not available to reimburse appointed counsel, he [or she] should not appoint members of the private bar to represent indigents." Id. at 429 (emphasis supplied).
5. Of course, this Court must appoint some member of the private bar since there is no other option. However, the Court cannot make undersigned counsel bear the costs of the defense without rapid reimbursement. For this reason, this Court should not only identify the source of potential funding, but order monthly reimbursement of counsel's overhead and fees.
WHEREFORE, Mr. CLIENT moves that this Court enter an order as follows:
1. Setting his motion down for an ex parte evidentiary hearing at which he may adduce the evidence in support of his claims; and,
2. Setting an hourly fee that will adequately reimburse counsel for out-of-pocket overhead expenses, as well as provide some compensation for the time actually committed to the case.
3. Ordering interim payment of the hourly fee on a monthly basis, and ordering advance payment of costs in this capital case.
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