Who should pay about $10,000 for an accident reconstruction expert and a private investigation in a murder case is under review by a judge in Cochise County, and the decision could result in the county paying for all of the defendant’s legal representation, to the tune of $100,000 or even more.
Rick Walter Martin is charged with 11 felonies related to the fatal shooting of Jorge Portillo as the two drove along Fry Boulevard on Sept. 28. 2020. He is being held in the Cochise County jail on a no-bail order signed by a judge after a Sierra Vista detective testified to “a high risk” of further violence in the community if Martin is released pending trial.
Martin, 21, is expected back in court on March 29 for a review hearing. No trial date has been set, but how soon the parties could be ready for trial is unclear, as defense attorney Andrew Marcantel is having trouble getting funds to pay for critical pre-trial activities.
In December, Judge Laura Cardinal approved $4,600 for Marcantel to have an accident reconstruction expert review Martin’s case. The funds covered 20 hours of the expert’s time at $230 an hour.
“The nature of the vehicles’ interaction will allow Mr. Martin factual basis for a defense of self-defense or a reasonable mistake of fact,” Marcantel explained at the time. “Having an expert reconstruct the accident will prove material evidence necessary for Mr. Martin’s defense.
But last month Marcantel filed two memos with Cardinal in support of enforcement of the judge’s previous order. At issue is the fact one of Martin’s family members is currently paying for Marcantel’s legal services. But there is not sufficient family resources to pay for customary expenses associated with a first-degree murder case.
Marcantel pointed to long established case law in Arizona which requires indigence be based “on the condition of the defendant,” not on the condition of the defendant’s relatives.
“When a defendant is declared indigent, whether or not they have counsel retained by others, they are entitled to county funding for the assistance of any investigator or expert witness reasonably necessary to present an adequate defense,” the attorney argued. “This Court has already correctly recognized this important principle. However, this Court’s previously granted order for funds was not enforced.”
If the court does not agree to provide the funds to ensure Martin has an adequate defense, then there is a chance Marcantel would have to withdraw from the case. Which means Cochise County’s Indigent Defense program must then find Martin an attorney qualified to handle a first-degree murder case.
And even though Cochise County contracts with several attorneys at below-market rates, some local lawyers told Arizona Daily Independent the cost of a two-week murder trial in 2022 could easily hit $100,000, all billed to the county’s Indigent Defense budget.
Or Cochise County could simply allocate funding for ancillary expenses for privately retained attorneys like Marcantel at a fraction of that cost.
Marcantel is also pushing Cardinal for court approval of funding for 100 hours of investigator services to process information which indicates there are additional witnesses to incidents between Martin and Portillo not listed in police reports.
“For Mr. Martin to have access to all potentially exculpatory information, this case requires an experienced investigator to find and interview all witnesses,” Marcantel argues. “A full picture of the circumstances surrounding the offense is vital in this case, because of its serious and complicated nature.”
Arizona has established statutory and case laws on the issue of balancing an indigent defendant’s constitutional protections against the state’s concern of the expenditure of public money. It requires the trial judge to find “that the defendant is unable to pay for such services” and that the expenditure “is reasonably necessary to present an adequate defense.”
Another case decided in 2002 by the Court of Appeals held that “the interest of the body politic in a fair trial as well as that same interest of the defendant outweighs any State interest in avoiding expenditures for such expert witnesses as are reasonably necessary.”