Mass-killing defendant has no attorney. Should Fresno court drop death penalty because of it?

Two civil rights organizations are asking the Fresno County Superior Court to take the death penalty off the table for the alleged mastermind of a 2019 Fresno mass shooting because they say defendant Ger Lee has been without an attorney for several months.

ACLU of Northern California and the California Attorneys for Criminal Justice in a letter sent to Fresno County Superior Court Judge Houry Sanderson are also calling for the court to immediately appoint an attorney to represent Lee.

The organizations say Lee has languished in the justice system with no counsel representation for four months while the case against him has moved forward. According to the letter, Lee’s appointed attorney dropped the case after repeatedly asking the court to properly compensate him.

According to the letter, the court has been unable to find another attorney to represent Lee for the same compensation, which has led to Lee going without an attorney.

Fresno County Superior Court media coordinator Kelly Pelletier confirmed that the court received the letter this week. Suzanne Olguin, with the Fresno County Superior Court, responding to questions from The Bee on behalf of Pelletier, said the court had no comment on the death penalty charge Lee faces “as charging decisions are made by the District Attorney.”

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 over the mass shooting. Earlier this year, the Fresno County District Attorney’s Office said it will seek the death penalty for three.

Emi Young, a staff attorney with the ACLU of Northern California, said the justice system relies on attorneys to “pursue the avenues of investigation that law enforcement ignored or overlooked, and to test the reliability of the government’s evidence.”

“When someone is deprived of this kind of assistance in a capital case, that inherently affects the reliability of the proceedings against them,” Young said. “One of the core issues in Fresno County is a flat-fee structure for attorneys in death penalty cases that does not compensate, fully compensate, counsel for the work that they are required to perform in these type of cases.”

Young said that under a flat-fee system there is no relationship between the amount of work an attorney is required to perform and the payment that’s received. For example, she said, there could be an attorney who might not want to do as much work and there could be another attorney who wants to ethically represent their client and do all the work that’s required, but both would receive the same amount of compensation.

Beyond their argument on Lee’s behalf, the organizations are asking the court to eliminate a flat-fee contract system. “Essentially, the Fresno court is requiring an attorney who is appointed in these types of cases to work for free,” Young said.

Olguin said the court’s compensation methodology is not a flat rate, and shared a 20-page policy document on special appointments. The record shows that appointed counsel get paid based on an “approved category attorney fee.”

According to the policy, for a Category 1 attorney fee rate, consisting of a case involving one defendant and one victim, the rate is $60,000; for a Category 2 attorney fee rate, consisting of a case involving one defendant and one or more victims killed in the same incident, the rate is $95,000; and for a Category 3 attorney fee rate, consisting of a case with one defendant and more than one victim killed at different times, the rate is $130,000.

Attorneys appointed to cases where the death penalty is being sought appear to be entitled to receive $30,000-$50,000 above the attorney fee, according to the policy.

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, the record says.

Olguin said the compensation was last updated on May 17, 2022. She wouldn’t say how the Fresno court’s compensation compares to that of other superior courts across the state.

“The Court recently made changes and has no immediate plans to make further changes,” she told The Bee in an email.

Fresno criminal defense attorney Michael Aed was the counsel representing Lee who asked the court to remove him from the case following the compensation issues. The Bee couldn’t reach Aed.

Young said another defense attorney in the case filed a request to be removed as counsel for similar funding issues.

Jane Ann Boulger, another attorney in this co-defending case, didn’t return inquiries from The Bee seeking comment.

The next hearing in the case is Thursday.