Statutory Fee Caps and Capital Collateral Defense Investigations

By Matthew Neff
In recently decided McClain v. Atwater, (SC11-1452), the Supreme Court decided whether a postconviction capital case presents extraordinary or unusual circumstances sufficient to depart from the fee caps for investigative expenses established by Florida Statutes. The Court examined the statutes and held that the case presented extraordinary or unusual circumstances sufficient to justify fees over the $15,000 limit specified in section 27.711(5), Fla. Stat.
Thomas James Moore was convicted of murder stemming from an incident in 1993 and was sentenced to death in 1997. In 2003, Martin McClain became Moore’s registry counsel pursuant to section 27.710, Fla. Stat., which provides a registry of attorneys to represent persons in postconviction capital collateral proceedings. Two years later, McClain contracted with a private investigator to work on Moore’s case. After reviewing the records and files, the investigator interviewed numerous individuals who had been incarcerated with Moore’s codefendants. It was discovered that Moore’s codefendants made statements implying that they had set up Moore and Moore was actually innocent. McClain then filed a postconviction motion in 2006. Five years later, the trial judge ordered an evidentiary hearing, which required the investigator to locate the witnesses again to ensure their testimony had not changed. After the hearing, McClain filed a motion for reimbursement for the investigative fees totaling $16,844, $1,844 over the limit in section 27.711(5), Fla. Stat. McClain claimed the fees were above the cap because they were based on six years of investigation. The Chief Judge of the Fourth Judicial Circuit denied the motion, claiming that McClain had not established that this case was of extraordinary or unusual circumstances sufficient to justify the $1,844 in additional fees. McClain sought review of the order to the Supreme Court.
The Court examined sections 27.710 and 27.711 of the Florida Statutes. Enacted in 1998, these sections establish the fee schedule and provide for a statewide registry of private attorneys to represent indigent death row defendants in postconviction proceedings. Section 27.711(5), Fla. Stat. contains provisions relating to fees in regards to obtaining the help of an investigator of $40 per hour, up to a maximum of $15,000. However, in Olive v. Maas, 811 So. 2d 644 (Fla. 2002), the Court authorized a trial court to award fees in excess of the $15,000 limit in capital cases where extraordinary or unusual circumstances existed. Recognizing the importance of “competent and effective representation,” the Court in Olive wished to prevent the statutory caps from jeopardizing the quality of representation. The majority in the instant case stressed that the proper focus of the court should be the effectiveness of the defendant’s representation, rather than attorney’s right to fair compensation. In determining whether additional fees are justified, the court must conduct an “as applied analysis to determine whether the statutory cap would be confiscatory of the attorney’s time, energy, talent, and resources under the circumstances of the particular case.” In her concurrence, Justice Pariente called on the legislature to review the fee structures to ensure that they are still realistic and sufficient to cover costs, fifteen years after their enactment.
The Court determined that McClain was entitled to reimbursement. While focusing on Moore’s right to effective representation, the court found that the fees were reasonable and necessary to developing his defense. In addition, the five-year period between the motion and the evidentiary hearing weighed heavily as an extraordinary or unusual circumstance. The Court also noted that pursuant 27.711(4) of the Florida Statutes, an attorney is entitled to $100 per hour. McClain actually saved the State $60 per hour by hiring an investigator to perform those tasks. The Court concluded that the circumstances in the case at hand were extraordinary and unusual and justified departure from the statutory limits.