OGDEN -- Almost a year and a half after Merlynn Kilfoyle was sentenced to prison for a homicide, the prosecution and the defense are still arguing about his psychological exams.
In court motions, Kilfoyle's public defender argued Weber County still owes $4,300 on the defense bill for psychological exams of Kilfoyle, who suffered mild mental illness. His mental state led to a plea bargain, reducing the homicide charge from a first-degree felony to a third-degree felony.
The Weber County Attorney's Office agreed to an initial $5,000 for the psychological exams of Kilfoyle, but argued against paying the additional billing of $4,300 as being requested too late, coming after Kilfoyle was sentenced.
Counties, by law, fund indigent defense -- providing attorneys for criminal defendants who cannot afford them.
That puts the County Attorney's Office in the position of controlling funding for the opposition in a criminal case, although the actual prosecutors are intentionally screened from those decisions.
Some states have a statewide indigent-defense system to avoid even the appearance of a conflict of interest in allowing the agency prosecuting a case any role in approving funding for the defense.
No one is pressing those arguments in the Kilfoyle case, but Deputy Weber County Attorney Dave Wilson is sensitive to them. He heads the office's civil division, in-house counsel removed from prosecution, which evaluates public defender funding requests for expert witnesses, investigators and other needs.
"In a perfect world, we would probably change it," he said. "But I think the system works ... 90 percent of the time we give the public defenders what they want."
But, Wilson notes, "even in a statewide system someone would still have to mind the store."
He said the Kilfoyle fee fight was not about the money, but a principle. "The principle being that you ask in advance for approval of the expenditure. You can't operate a budget any other way."
In his motion seeking payment, Kilfoyle's public defender, Randy Richards, argued that the timing of the $4,300 billing was "a mere oversight" and the real issue was a level playing field.
He cites a 1929 New York State Supreme Court decision as the "best articulation of the constitutional implications of this issue." It reads, "A defendant may be at an unfair disadvantage if he is unable because of poverty to parry by his own witnesses the thrusts against him."
On Wednesday 2nd District Judge Michael DiReda ended the debate by granting the county's motion to dismiss Richard's fee motion. DiReda sided with the county's argument that the payment request came too late and the court had actually lost jurisdiction over the case after Kilfoyle was sentenced. An appeal by Richards is possible.
Kilfoyle, 32, was sentenced Dec. 17, 2009, to up to five years in prison on a third-degree felony charge of homicide by assault.
The May 2000 shooting death of John Thomas Rush was considered a suicide for six years until Kilfoyle's stepmother told police Kilfoyle told her he fatally shot Rush.
Kilfoyle also was sentenced to one to 15 years in prison for second-degree felony possession of a handgun by a restricted person. A prior felony bans subsequent firearm ownership.