By Stephen Hunt
The Salt Lake Tribune
Salt Lake County District Attorney Lohra Miller says the budget crunch has her office charging defendants in criminal cases for materials they had been getting for free.
Starting this month, defense attorneys are paying for copies of police reports, photographs, videotapes and witness interviews.
Miller argues the administrative cost of processing such materials should be borne by defendants rather than taxpayers. But defense attorneys on Wednesday said they worry the multitiered fee schedule Miller has devised will mean delays in getting information needed to build their cases.
Added defense attorney Clayton Simms: "There is something fundamentally unfair about having to pay to see the evidence against you."
Utah State Bar President Stephen Owens said he had received several complaints from attorneys about the fees.
"We're sympathetic," Owens said. "But we've taken no position to date. We're trying to talk to interested parties to evaluate it and see if we ought to."
Miller noted that many other counties and some cities have been charging fees for so-called discovery materials for years.
In 2006, the Utah Court of Appeals ruled the Washington County Attorney's Office could charge "reasonable fees" for copies in the case of non-indigent defendants.
But Washington County was charging a $5 flat fee. Miller's fee schedule includes charging $25 for an initial discovery packet, $0.25 per page for supplemental material, $1 per photograph and $20 per videotape.
Miller also plans to charge an hourly rate for time spent by her staff compiling, formatting, redacting and packaging information. All payments must be made up front, Miller said, because it is simpler and she does not want to get into the business of collecting from attorneys.
But defense attorney Earl Xaiz said charging for staff time amounts to "double billing" by the district attorney because "that is what they're getting paid to do anyway."
Xaiz also complained that charging $25 for initial discovery was much higher than the flat $5 or $10 charged by other jurisdictions, especially when an initial police report may amount to less than a handful of pages.
"Some of this really over the top," Xaiz said, adding that he believes his firm will at some point challenge Miller's fee scheme.
"We have cases in federal court where they provide us with thousands and thousands of pages of material, and we don't have to pay for that," Xaiz noted.
For constitutional reasons, Miller will not be charging Salt Lake Legal Defenders Association, which represents indigent criminal defendants. And that is another sore point with defense attorneys.
"It's discriminatory when you say indigent defendants don't have to pay, but other clients do," Xaiz said.
Defense attorney Greg Skordas is not troubled by paying for discovery, but he said he does not like the notion of making piecemeal payments for photos, videotapes and digital recordings
"Why not make it a blanket fee?" asked Skordas, noting that making multiple payments will be "tedious" and difficult to manage for both the defense and the district attorney.
Skordas, Xaiz and Simms all predicted that the cost of administrating the fee schedule will end up costing the district attorney's office more money than it collects.
Miller disagreed.
"We will be doing it with existing resources," she said. "We have projected we will be in the black."