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California lawyer quit death penalty case over court-ordered pay scale. Why he’s back

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The Fresno County Superior Court has offered an increased compensation for an attorney to resume representation of the alleged mastermind of a 2019 Fresno mass shooting who had gone without counsel for several months.

The court’s action follows an early November request by the ACLU of Northern California and the California Attorneys for Criminal Justice for the court to address compensation issues that left defendant Ger Lee languishing in the justice system with no attorney. The two civil rights organizations, in their Nov. 7 letter to the court, also asked for an immediate appointment of an attorney to represent Lee, and for the court to take the death penalty off the table, given his months-long lack of legal representation.

On Friday morning, Fresno criminal defense attorney Michael Aed was reappointed to represent Lee with a modified compensation that he accepted.

Aed was representing Lee but dropped the case earlier this year after repeatedly asking the court to better compensate him. His requests to the Fresno County Superior Court were denied, Aed said, and he eventually went to the Fresno-based 5th District Court of Appeal, which also denied his request.

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Soon after the two organizations stepped in, Aed said, he received a call from the Fresno County Superior Court asking if he would be interested in submitting a new funding request. On Monday, he submitted a request and gave the court two options. On Thursday, the court issued an order accepting the option for an hourly rate of $150 with a cap of $100,000. At $90,000, Aed can submit a request for another $100,000, but he has to explain why the additional funds are needed.

“This has been a long road,” Aed said, thanking the organizations for shedding light on the issue. “That’s the path that they (the court) want to take, so at this point in time, I’m inclined to accept that.”

There was a regularly scheduled hearing on the case Friday during which Aed appeared and was reappointed.

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By then, Lee had gone without an attorney for five months.

Fresno County Superior Court officials didn’t return requests for comment.

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Under the court’s policy for special appointments, an approved hourly fee for attorneys is $102, but the hourly rate is only applied when a category fee or schedule payment is not applicable. There are three categories under the policy, and each category compensates for specific kinds of cases.

The co-defendant case in which Lee is a part of doesn’t quite fit into any of the cases described in the three categories, given that the case involves multiple defendants and multiple victims.

New deal considered an exception

According to the court order, given the unusual circumstances of this case, the court is making an exception to the pay structure currently in place for this case. The hourly $150 rate is not retroactive.

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Lee was extradited from Minnesota, where he was arrested in connection to the Fresno shooting that killed four people and injured six others. Six other members of the Mongolian Boys Society gang are facing charges in the mass shooting. Earlier this year, the Fresno County District Attorney’s Office said it will seek the death penalty for three.

“We have decided as Americans that all people in this country have a right to counsel — no matter their income or the charges they’re facing. That basic principle is at the core of our justice system,” Emi Young, a staff attorney with the ACLU of Northern California, said in a statement to The Bee on Thursday. “Fresno County should not be using a flat fee system to compensate court-appointed counsel, especially in complex capital cases that require more work hours than the flat fee covers.”

Lee has gone without an “attorney for five months because of Fresno’s inadequate payment scheme,” Young said.

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“We hope the Court’s decision today indicates a willingness to fully fund defense representation in all cases moving forward, and to protect everyone’s constitutional right to counsel,” she said.

Other attorneys want funding change

Other attorneys in the co-defendant case have also requested funding modifications.

“I would hope that the court would reconsider and have a consistent funding order that reflects the same for all,” Aed said.

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In November, attorney Jane Ann Boulger, who is representing another defendant in this case, said their work wasn’t considered “valuable enough” to pay them appropriately.

“It just comes down to how nobody cares if these kids get a fair trial,” she told The Bee.

As attorneys in private practice who take on court special appointments, she said, they also have to pay their employees and “keep their business afloat.”

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“It’s sad that our goal is literally to keep our head above water,” she said.

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