Syracuse, NY - The county’s Assigned Counsel Program does not have to pay the lawyer who assisted in representing Stacey Castor in her highly publicized murder trial, the local administrative judge has ruled. In a seven-page decision made public today, Fifth Judicial District Administrative Justice James Tormey III ruled County Judge Joseph Fahey was wrong in ordering the ACP to...
Syracuse, NY - The county’s Assigned Counsel Program does not have to pay the lawyer who assisted in representing Stacey Castor in her highly publicized murder trial, the local administrative judge has ruled.
In a seven-page decision made public today, Fifth Judicial District Administrative Justice James Tormey III ruled County Judge Joseph Fahey was wrong in ordering the ACP to pay Todd Smith for his work with lawyer Charles Keller on the Castor case.
Tormey concluded Smith apparently did not seek to be appointed to the case in a timely manner because he did not meet the ACP’s eligibility requirements. And he concluded Fahey had no authority to retroactively award fees to a lawyer who was not appointed before providing any legal services in a case.
“Many attorneys voluntarily second seat to get advance trial experience in cases such as this,” Tormey noted. “Neither prior to nor during the course of rendering these services did Mr. Smith ever comply with any of the Rules that would deem him qualified as a second seat in a homicide trial.
“Therefore, I find that there was no authority to award any fees to an attorney who is not appointed by the Court prior to rendering the services, and who was not qualified by the accepted rules to handle a case such as this,” Tormey concluded.
In April, Fahey ruled the complexity of the Castor case had warranted having a second lawyer assigned and it was more cost-effective to keep Smith on because of his familiarity with the case than to start from scratch with a new lawyer.
Smith initially began working on the case with Keller when Keller was retained as Castor’s lawyer. But when the retainer was depleted, Fahey assigned Keller to remain on the case as Castor’s lawyer.
Smith then continued to work with Keller throughout Castor’s trial early last year. Castor was convicted in February 2009 of murdering her husband in 2005 and trying to murder her daughter in 2007. She was sentenced in March 2009 to serve 51 1/3 years to life in state prison.
It was several weeks after that sentence was imposed that Fahey retroactively assigned Smith to the case dating back to when he started working with Keller.
The Assigned Counsel Program refused to pay Smith because the program does not authorize payment to a second lawyer on a case and Smith was not on the program’s list of lawyers eligible for assignments to felony cases and homicides.
Smith filed a lawsuit against the county and ACP in December seeking to be paid $31,462.50 for work assisting Keller on Castor’s case. When the county moved to have that lawsuit dismissed, Smith sought the order Fahey issued in April directing ACP to pay him for his services.
“By retroactively appointing Mr. Smith, the Court has ordered the County and ACP to pay Mr. Smith for services he performed for Ms. Castor, either on a voluntary basis or under the auspices of the law firm of Mr. Keller,” Tormey noted. The county’s position, he noted, was that Smith could not volunteer his services and then later seek compensation as he did.
Tormey also rejected the argument from Smith’s lawyer, Gary Collison, that the administrative judge did not have the authority to review Fahey’s decision ordering Smith paid. Collison contended Tormey only had the authority to review the amount of compensation to be paid and not whether a lawyer was properly assigned to receive compensation.
Tormey ruled it was Fahey who did not have the authority to appoint Smith to the case since Smith was not on any of the ACP eligibility lists at the time.
He further concluded “the improper appointment of counsel to an indigent person under the auspices of County Law in and of itself makes any fees or determination of compensation improper” and that he had the authority to review that issue as the district’s administrative judge.
Collison said today Smith had not yet decided whether to file additional legal action seeking an appellate court’s review of Tormey’s administrative action. But he said the ruling from Tormey should not impact Smith’s civil lawsuit which is still pending.