COURT REPORTERS FEES ADDED ON IN COST RECOVERY FOR EXPENSIVE TRIALS

PROSECUTORS ARE BECOMING COLLECTION AGENTS IN RETRIEVING THE COSTS FOR TRIALS...

THE BEAGLE HAS LEARNED THROUGH BLOGS ON THE INTERNET THAT it appears that financially strapped prosecutors are approaching judges with a novel concept whereby they are ordering defendants to pay for excessive investigative and prosecutorial costs.

That's what Wayne County Prosecutor Kim Worthy did during the recent sentencing hearing of former Detroit Mayor Kwame Kilpatrick, jailed for 120 days as well as ordered to pay a cool $1,000,000 in restitution in his conviction of obstruction of justice.

Evidently, Kilpatrick had lied about an affair, which was later revealed in text messages, during a whistleblower trial that cost the city $8.4 million.

During the sentencing phase of the trial, Prosecutor Worthy asked the judge to order Kilpatrick to pay another $22,186 to cover services that were unique to his case: digital evidence consultants with text-messaging expertise, extra court reporters, transcript costs and new locks on doors to secure certain offices.

"These things were completely unique to the Kilpatrick case," said Assistant Wayne County Prosecutor Maria Miller. "We're facing very tough economic times ... and, where the law allows us to ask for reimbursement, we will."

The judge in the trial, however, denied the request noting that he had never before in his career had a prosecutor make such a request.

A TREND IN RECOUPING 'UNUSUAL' COSTS

It seems as though prosecutors in Ohio, California and Rhode Island have made similar requests. And they should continue to do so, said Tom Sneddon, interim executive director of the National District Attorneys Association and the former district attorney in Santa Barbara County, Calif. "Where there is an opportunity and there is an unusual case, if you can recoup costs, then you should," said Sneddon, who himself has secured reimbursement from defendants in cases involving embezzlement and catastrophic grass fires.

In the grand scheme of costs related to prosecution, the prosecutors' investigative costs are different from the court costs that are levied in most criminal cases, such as processing fees, filing fees, attorney fee reimbursement for defense counsel and mandatory crime-victim fees, which are ordered where there is a conviction. NDAA Director Sneddon explained that defendants can be ordered to reimburse the government for investigative costs as part of a plea agreement or as a condition of probation.

He said that cases involving consumer protection, the environment or major embezzlement typically are where prosecutors might seek reimbursement for extraordinary expenses, like audit services or digital evidence analysis.

"This clearly -- let's say within the last five to seven years -- has become used more often than before," Sneddon said.

National Association of Criminal Defense Lawyers spokesperson, Jack King doubts there will be much luck in recouping costs from defendants, no matter how hard-pressed financially they may have become. "I understand that argument -- all government agencies face some belt-tightening," King said. "But the remedy of making the defendant pay for his own investigation and prosecution has been held a nonstarter. It's been tried before in the federal courts and shot down by several courts of appeal."

It happened earlier in Ohio this year: Prosecutors tried to recoup costs in a public corruption case, but an appeals court ruled against them in May. The case involved a former state representative who entered a no-contest plea to failing to disclose the source of a gift in excess of $75. A municipal court judge ordered her to pay $2,025 in costs associated with prosecuting the case, but the appeals court reversed the ruling, holding that "ordering a defendant to pay the costs of the prosecuting attorney is a novel concept in Ohio." Ohio v. Perez, No. 2008-Ohio-2308.

Not only novel, but troubling, said attorney Barry E. Savage, who represented the defendant in the Ohio case. He doesn't believe that defendants should have to pay for a prosecutor's investigative bill.

"The first time I heard about it I said, 'Where did they come up with this? This is not part of the agreement,' " Savage said. He argued that prosecutors recouping costs for handling a case is not allowed by statute. "A defendant has got to be protected from judges and prosecutors ordering them to pay for things that they are not obligated to pay. It's that simple."

The 1st U.S. Circuit Court of Appeals made a similar ruling in 2006, when it ruled in favor of a former mayor of Providence, R.I., who was convicted of perjury and criminal contempt and had been ordered to pay $152,000 for the costs of the investigation of his crimes. U.S. v. Bevilacqua, No. 05-2390 (1st Cir.).