All of us share stake in Gerlach’s defense bill

How much should you and I pay for the defense of Gail Gerlach?

A judge will hear arguments today over bills submitted by the legal team for Gerlach, the Spokane man acquitted of manslaughter after fatally shooting a fleeing car thief. These bills are significant, totaling $284,000, and they’ve raised the kind of response in some quarters that almost any financial question in government life does – the sense that it’s too much.

Perhaps it is. But it’s a mistake to think of the cost of Gerlach’s defense as a benefit only to him. Everyone has a stake in a strong defense against criminal prosecution; all of us have a vested interest in Gerlach having a good defense, even if we never shoot a fleeing thief. Even those of us who find it very difficult to this day to view what happened that morning outside Gerlach’s home as anything like self-defense.

The jury disagreed with that, of course. Prosecutors had charged him with manslaughter in the March 2013 shooting of Brendon Kaluza-Graham, who had stolen Gerlach’s idling SUV. At trial, defense attorneys successfully argued that Gerlach feared for his life, having seen Kaluza-Graham raise his hand with what he thought was a gun – through a tinted rear window – and acted to defend himself.

State taxpayers are on the hook here not because Gerlach was acquitted of manslaughter, but because jurors found that, based on a preponderance of the evidence, he acted in self-defense. That second verdict, on which 10 of 12 jurors agreed, is the one that put the bill for Gerlach’s defense at the state’s door. The provision in state law is intended as a check against prosecutors filing weak cases, and as protection against the costs of a life-destroying debt in expensive homicide cases where jurors determine the defendants were protecting themselves.

Gerlach’s attorneys have argued that prosecutors should never have brought a criminal case against Gerlach. One of them, Richard Lee, said this week that the case was always “very, very tenuous.” I think he’s wrong about that – prosecutors should have taken it to court and they should have won. Easy for me to say. But I don’t think there’s anything wrong with the state picking up the tab for Gerlach here, regardless of his guilt or innocence. The public interest in justice is no less entwined in the importance of a good defense than a good prosecution.

Lee said this week that even those of us who disagree with the verdict have a stake in him having a good defense – and a stake in him not being bankrupted, or even burdened greatly, to successfully defend his innocence at trial.

“I disagreed with the verdict in the O.J. Simpson case … but he was found not guilty and that is the system,” Lee said.

“Every one of us – even those of us who didn’t agree with the verdict in the Gerlach case – every one of us could be a defendant someday.”

Lee is asking a judge to approve payments to him of $174,000 for his work in the case, pricing his time at around $300 per hour, which he says is a typical rate for a homicide defense. His fellow attorney, David Stevens, is seeking $110,000, which also includes the costs of flying home from Kosovo, where he was doing legal work for the European Union. Stevens said that neither he nor Lee were excessive in their spending, adding that he sometimes stayed in Gerlach’s home rather than a hotel.

Lee said he spent 594.5 hours working on the case between the filing of charges in April 2013 and the verdict in April of this year. His research included a lot of time looking into legal theories surrounding self-defense law, including the George Zimmerman trial in Florida.

“I estimate I put about 300 hours into my closing argument alone,” he said.

The prosecutor in the case, Deric Martin, did not return a call seeking comment. Presumably, his side will argue that the amounts Lee and Stevens are seeking are too high.

Are Lee and Stevens asking for too much? The hourly rate is not unheard of, but neither are higher or lower ones. But Lee’s time on the case – and especially 300 hours for a closing argument – seems like a whole lot of work. A whole lot of work. That’s almost two months of 40-hour weeks for his closing alone. Almost a month of 80-hour weeks.

We’ll see what the judge says. Maybe that figure is something like an opening bid in a negotiation, offered with a lower final figure in mind. Or maybe it’s a fair assessment for the guys who got Gerlach off.