Gerlach attorneys argue for nearly $330,000 in state reimbursement

Months of preparation and hours of testimony in the high-profile manslaughter trial of Gail Gerlach were converted to dollars and cents Friday as attorneys argued how much the state should reimburse his defense team.

Judge Annette Plese reserved judgment on the nearly $330,000 bill handed over by Gerlach’s five-member defense, including three attorneys and two expert witnesses. Attorney Richard Lee argued tasks were assigned efficiently and the billing was fair given the severity of the charges against Gerlach, who stood trial after killing Brendon Kaluza-Graham with a single gunshot through the rear window of a stolen SUV in March 2013.

But Deputy Prosecutor Deric Martin said the defense team’s request for compensation was inflated by double- (and in some cases triple-) billing, excessive travel costs and fees for expert witnesses who didn’t need to be present for the entire two-week trial.

“Literally the only thing we were actually fighting about, factually, was how far away that SUV might have been when the shot was fired,” Martin said, calling the case “easy” in terms of its preparation because of how much the parties agreed on the evidence. The difference, he said, was in their opinions of how the evidence should be interpreted.

Lee, the original lead attorney in the case, said he brought on two partners – David Stevens and Teresa Border – because of their expertise in court procedures and jury selection, respectively.

“(Gerlach) requested this,” Lee said. “He was facing a homicide charge, and he wanted every angle of this covered as much as possible.”

But Martin said tasks were often duplicated, as Stevens billed for multiple hours reviewing the opening and closing statements Lee prepared. The pair also attended interviews and other hearings that could have been handled by one attorney, Martin said.

Border, who questioned potential jurors for a few hours on a single day of the trial, billed $2,400 for nine hours of work, only five of which were spent on jury selection, Martin said.

“Frankly, I would ask the court to make the finding that there was not a need for two attorneys,” he said. “… Ms. Border should not be paid at all. There was certainly no need for three attorneys.”

Martin also disputed the roughly $22,000 each billed by Gerlach’s two defense experts, forensics specialist Gaylan Warren and use-of-force witness Robert Smith. Both men were in court for the entire trial at the pleasure of the defense team, not through a court order, Martin said.

Lee said many of the costs related to Smith’s testimony are due to the prosecution’s efforts to dismiss him as a witness.

“We spent a considerable amount of time going over in rehearsal, as to how we were going to ask and lay the proper foundations for the questions we needed to get him qualified,” Lee said.

Plese asked Lee to file as part of the public record the receipts and invoices used in determining the $330,000 figure, which he handed over Friday afternoon. She asked him about $100 for binders, $5 for highlighters and $500 in charges for copies of charts and diagrams used in court.

She also questioned whether Stevens, who was overseas in Kosovo, was in effect triple-billing by asking for per diem payments, airfare and attorney fees during his flights back to the United States. Lee answered for Stevens, who was not present Friday, saying his partner worked on the cases on the plane. But, he said, the determination about triple-billing should be left to the judge.

“There is no intention to triple-bill on that matter,” Lee said. “If the court finds that that is triple-billing, then that would not be appropriate for us to submit.”

The amount Plese determines reasonable will be turned over to the Washington state Office of Risk Management, which will determine a payment plan with public money.

Friday’s proceedings followed a finding by 10 members of the jury that Gerlach acted in self-defense when he shot and killed Kaluza-Graham. Under Washington state law — one of few like it in the country — the defendant and legal team are entitled to compensation for reasonable court fees and lost wages if the jury makes that decision.

State legislators tried unsuccessfully to repeal the statute in 2011. At the time, lawmakers determined the number of payments based on the law nearly quadrupled statewide from 2009 to 2011 compared with the previous three-year period.

Taxpayers paid about $34,000 annually in successful self-defense claims between 2008 and 2011, according to the state’s Office of Financial Management.

Any award given should be based on the amount Gerlach would have had to reasonably pay regardless of the outcome of the trial, Martin said.

“The statute is something that’s designed to make Mr. Gerlach whole, which he should be made, after the verdict in this case,” he said.