Note: This commentary originally appeared in The Denver Post on Sept. 21, 2015, and was written in response to a Sept. 13 column by state Public Defender Doug Wilson. It is reprinted here with permission from the author and The Post.
By Steve Zansberg
Colorado Public Defender Doug Wilson asserts that his office is as transparent as the law and attorneys’ ethical rules permit it to be. He claims that by providing the public with the “salary range” of his staff, and with the offices’ annual and monthly expenditures, the public has been provided with all of the information it could legitimately and lawfully desire.
I respectfully disagree.
As with all other taxpayer-funded positions of public employment, the citizens of this state are entitled to know, down to the penny, precisely how much money the public employees in his office receive.
Nor do I agree with Wilson’s claim that this state’s ethical rules for attorneys prevent him from disclosing how much taxpayer funds that office expended on any individual criminal case. To the contrary, earlier this year, in response to a subpoena, Judge Jane Tidball ordered Wilson’s office to disclose what it spent on the defense of Michael Blagg.
Other state public defenders who are subject to the same ethical rules have publicly disclosed the amount of money they have expended in defense of specifically identified capital defendants. In 1993, Maryland’s highest court held that the amount of overtime fees and other expenses incurred by the state public defender in a capital case could be disclosed under that state’s open records law without violating the attorney’s ethical duties so long as disclosure would not prejudice that client’s interests; here, there is no danger of prejudicing James Holmes’ interests in further proceedings. Other courts have similarly found that disclosure simply of the amount of money a public defender has spent defending a criminal case does not prejudice a defendant’s rights.
Wilson owes it to the public to obtain an authoritative independent opinion on the scope of his ethical obligations. The Colorado Bar Association provides a mechanism for attorneys to obtain an informal letter opinion and also to request a formal published ethics opinion. If he has not sought such advice, Wilson should do so today.
Lastly, Wilson would have no ethical quandary if Holmes authorized him to disclose the sum that this state’s taxpayers have borne as a result of prosecutor George Brauchler’s decision to seek the death penalty in his case. If he has not done so, Wilson should immediately seek that consent.
Coloradans are engaged in a much-needed debate about the wisdom of continuing to apply the death penalty. To inform that debate, the public is entitled to know precisely what is the cost of taking such cases to trial and through all appeals.
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