SALT LAKE CITY — A federal judge quizzed attorneys Friday about whether an email from the Weber County Attorney’s Office to a public defender amounted to an interference in the capital punishment defense of death row inmate Douglas Lovell of South Ogden.
U.S. District Judge Howard C. Nielson Jr. heard oral arguments in a telephone hearing that centered on contract indigent defense attorney Samuel P. Newton’s January 2018 civil suit against the county.
Newton alleged his free speech rights were violated when the county commission in 2017 pulled his contract after he objected publicly about miserly capital defense funding.
In June 2019, the county filed a motion asking the court to dismiss Newton’s suit. It said Newton’s contract was canceled for “misrepresentations and falsehood,” not because he sought more money to defend Lovell and complained to a judge and the media.
Nielson asked about a June 5, 2017, email to Newton from a deputy county attorney that challenged billings and sources of expenses in the defense Newton was conducting in Lovell’s appeal.
The email questioned why Newton needed to meet so many times with Lovell and said unless he revised some of his billings the county would have to hire a different public defender for the case.
Kristin A. VanOrman, representing the county, said, “There was a question why there had to be so many communications. There was never a directive saying ‘You can’t talk to him that much, we’re not going to pay for it.’”
She said the email focused on the other billings and it was only asking for justification of the frequency of attorney meetings with Lovell.
“That seems like a very strange reading of the email,” Nielson said. “I think most people reading this would understand” the sentence about the county finding another public defender applied to all of the complaints listed in the message, including the meetings with Lovell.
But VanOrman said the county did not violate Newton’s free speech rights because it was addressing only Newton’s contract, which she said was an administrative matter involving an independent contractor, not Newton’s speech rights.
The county contended Newton misrepresented the county’s actions in his arguments to the trial judge in Lovell’s case and in statements to the news media.
“This is not in the context of Lovell’s defense,” she said. “It was in the context of his own contract. His speech was aimed at airing a grievance of a purely personal nature and that is not a matter of public concern. He wanted more money under his contract.”
She said some of his comments were defamatory toward county officials and that “misrepresentations are not protected speech.”
Newton’s attorney, Karra Porter, argued that Newton’s comments about his contract and Lovell’s defense cannot be easily separated.
“One thing I don’t think you can say is that (Newton) wasn’t making an argument on behalf of Mr. Lovell,” Porter said. “Lovell himself was entitled to a constitutionally adequate defense. I don’t think the county can say this was merely administrative.”
Newton had complained that his original $75,000 contract to represent Lovell in his appeal was inadequate and the county was being slow or objectionable in responding to his concerns.
He later quit as Lovell’s attorney, and subsequently the county canceled his separate contract for regular public defender services, citing his alleged misrepresentations.
Porter said Newton is “being used as the poster child for why the death penalty needs to go (or) the defense be funded differently.”
Weber County handles its own death penalty defense funding. Most other Wasatch Front counties belong to a state-run indigent defense pool for capital cases.
In 2015 Lovell was convicted a second time in the 1985 murder of Joyce Yost of South Ogden. The first conviction had been overturned.
In 2nd District Court in Ogden, a judge currently is weighing arguments on whether Lovell received ineffective assistance of counsel during his most recent jury trial.
After Newton withdrew from the case in 2017, the county hired Colleen Coebergh to represent Lovell.
In Newton’s civil suit, Nielson now will consider the county’s motion for dismissal and Newton’s competing motion for a ruling in his favor.
