Attorney wants court to force V.I. to spend more on defendants

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ST. THOMAS - The V.I. Superior Court system's cash crunch may be threatening some indigent defendants' right to a fair trial, according to court documents and attorneys working such cases.

In a motion filed Monday in V.I. Superior Court, St. Thomas attorney Russell Pate is asking the court to clarify in writing whether the government - in light of its ongoing "dire financial situation" and in light of the governor's announcement last week that he would be asking departments to trim 5 percent from their Fiscal Year 2013 budgets - is able pay for expert witnesses to investigate and testify in indigent defendants' cases.

"What is most relevant to this case is the financial solvency of the court-appointed fund for indigent defense representation," Pate wrote. "Counsel must retain experts for this case to provide a Constitutionally adequate defense for the accused."

Pate is acting as court-appointed counsel for Javal Miguel Phillip, 23, who is charged with first-degree attempted murder, first-degree assault, unauthorized possession of a firearm, first-degree reckless endangerment and aiding and abetting in connection with a May 2012 shooting in Havensight.

Pate wants to hire an investigator and a ballistics expert to work on the case, according to the motion.

But the motion argues that the legislative act appropriating money for the Superior Court in Fiscal Year 2013 "did not budget any monies for the court-appointed indigent defense fund."

"This puts undersigned counsel in an ethical dilemma when trying to retain experts," Pate wrote. "Just as an attorney cannot write a check when the attorney knows that there are no funds in the checking account, counsel, ethically, must tell any experts that there are no monies in the court coffers for payment.

The motion names two investigators - Michael Motylinski, formerly an assistant attorney general, and Joe Tsidulko - who have "stopped acting as investigators for court-appointed counsel due to late-payment, reduced payment or non-payment."

The motion also states that Alan Greenspan, a ballistics expert who Pate previously hired, "is refusing to accept cases due to numerous outstanding invoices with the Superior Court of the Virgin Islands."

"Thus, in sum, there is scarcity - if not total lack - of qualified people who are willing to work for free as experts or investigators," the motion states.

Pate notes in the motion that investigators and expert witnesses, unlike attorneys, are not obligated to provide pro bono services.

The motion asks the court to provide written clarification of the funds available to defend these cases, something Pate argues "will be essential to secure necessary experts who have extreme hesitation due to the uncertainty of future payment for their services rendered."

Lastly, the motion notes that without the ability to retain experts, defendants are deprived of their Sixth Amendment right to effective assistance of counsel.

In a footnote, Pate comments that, in the alternative, his case could be transferred back to the Territorial Public Defender's Office, which he says has funding for experts, or the Attorney General's Office could be ordered to pay for the experts.

Pate declined to comment for this story, citing his involvement in the case. But he is not alone in questioning the Superior Court's payment practices, nor is he the first to do so.

Miami-based attorney Joseph DiRuzzo has raised questions about the judiciary's fiscal practices going back at least two years. He argued in a 2011 motion that the territory's low pay and overwhelming criminal caseloads undermine a defendant's right to a fair trial with a qualified - and willing - lawyer in serious criminal cases.

In an interview last July about that issue, DiRuzzo, like Pate, reported that he had worked with expert witnesses in V.I. cases who had not been paid.

DiRuzzo said Monday that not much has changed since then in the criminal case in which he is acting as court-appointed counsel, and he echoed many of the arguments presented in Pate's motion. DiRuzzo emphasized that the court needs to clarify first whether money to pay experts actually exists and, second, whether the court actually will use that money, if it exists, to pay experts hired in indigent defendants' cases.

DiRuzzo added that he has noticed a tendency of V.I. courts to continue cases where this is an issue - "kind of kicking the can down the road" to avoid "the obvious issue with funding."

That could lead to future appellate questions regarding a defendant's right to a speedy trial, DiRuzzo said.

Attorney Michael Sheesley, who is court-appointed counsel for someone accused of embezzlement, said he has hired a computer forensics expert to work on his case. Sheesley said the court has authorized - and actually paid - his expert for investigating the case, but he has yet to receive approval for paying the expert to travel to the V.I. for trial, which could end up delaying the trial.

Sheesley added that lag time in getting checks out to attorneys and experts in court-appointed cases - sometimes "months and months" - can be particularly damaging for sole practitioners.

"I always use the analogy that you'd never ask a plumber to come over and fix your toilet and then not pay him for 90 days," Sheesley said.

Superior Court Presiding Judge Darryl Donohue Sr. did not return a message for this story.

- Contact Lou Mattei at 714-9124 or email

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