Don’t execute Brian Dorsey. His flat-fee lawyers had all the wrong incentives | Opinion

There is a reason that Missouri no longer pays its public defenders a flat fee in death penalty cases, and his name is Brian Dorsey.

Dorsey, who got exactly what Missouri paid for — not much, in other words — in the way of legal counsel, will be executed at 6 p.m. on Tuesday unless Gov. Mike Parson or the Supreme Court intervenes.

Has the condemned man ever coached football like Brett Reid, whose sentence Parson recently commuted, you ask? Nope, though Dorsey’s 99-year-old high school football coach is beside himself over the situation. And Dorsey can’t count on the governor to listen to his own employees.

Out of fashion as mercy is right now, those supporting Dorsey’s petition for clemency include five jurors, over 70 corrections staff, three Republican state representatives and the former Missouri Supreme Court judge who in 2009 upheld Dorsey’s 2008 death sentence

Corrections staff believe that Dorsey, a model inmate and beloved prison barber, has shown so much remorse and rehabilitation that he deserves to live.

But the legal case for sparing him is if anything even more compelling.

That’s why his current lawyers have reason to hope the Supreme Court will stay his execution and weigh whether the flat fee his “financially vulnerable” baby lawyers pocketed in return for shockingly little work, inherently put their interest — since they were paid the same no matter how many hours they worked on the case — in conflict with the best interests of their client, to his clear detriment.

Dorsey, who is 52, suffered from debilitating, drug-resistant depression from a young age. He attempted suicide twice, tried to self-medicate with alcohol and crack, and at the time of his crime had for years suffered from paranoid delusions when in withdrawal.

He has always said he was guilty of killing his cousin and her husband, though he was so deep in psychosis at the time that he doesn’t remember it.

So there’s no question that he fatally shot Sarah and Ben Bonnie, who had just rescued him from some drug dealers who’d been shaking him down for $175 he didn’t have. He was crying so uncontrollably that they didn’t want to leave him alone and had taken him in for the night, right before Christmas in 2006.

Attorneys didn’t order psych evaluation

Apparently thrilled to be getting all of $12,000 each for what should have been thousands of hours of work, the two young attorneys appointed to the case did no investigation, urged him to plead guilty in return for nothing, and did not even order the psychiatric evaluation that the state would have paid for.

Nor, perhaps most incredibly, did they bother to ask him about the night of the crime.

That’s so wrong I’m going to repeat it: They by their own later admission did no investigation, refused to work with the investigator who would have been paid for by the public defender office, and pressured their client to plead guilty the day before the hearing at which he did as they had asked.

So even though you cannot, under Missouri law, commit first-degree murder in a psychotic state, that’s the charge they had him plead guilty to, in the vague hope that a jury would let him live because he was sorry. (Hey boys, have you met Missouri?)

When their own expert testified during the sentencing phase of the trial — the only phase, in this case — that he could not be found guilty of first-degree murder because of mental disease or defect, the judge had to strike that testimony. Because he’d already pleaded guilty.

We know that easy money was top of mind for the lawyers because one emailed the other and urged him to get in on it and request appointment to the case: Dorsey is “easy to work with,” he told his friend, and “ready to do what his attorneys advise.” How wonderful for them.

Had Dorsey been tried in Kansas, his conviction and death sentence would have been reversed long ago, because the Kansas Supreme Court has rightly seen such a conflict as so built-in that its damage must be assumed.

Flat fees in death penalty cases violate American Bar Association guidelines.

Still, the question of whether flat fees in such cases are constitutional has been answered differently by different states. The Supreme Court of Missouri, unfortunately for Dorsey, does not agree with the high court of Kansas, which is why SCOTUS needs to settle the issue now.

‘No ethical attorney would even consider it’

Another Missouri man on death row, David Hosier, whose lawyers also received a flat fee from the state, is set to be executed in June. After Dorsey’s case, Missouri stopped doing that.

That doesn’t help him, of course. But though time is short, it’s not yet too late to spare a man who so clearly was denied his Sixth Amendment right to a fair trial and effective assistance of counsel.

We know that justice is costly in our country. As the longtime death penalty abolitionist Sister Helen Prejean often says, there are no millionaires on death row.

Kansas City defense attorney Cheryl Pilate, who has handled a dozen capital cases, said those cases “take thousands of hours of work. They’re long, exhausting, unpredictable. No one in their right mind would take a flat fee for a capital case, because it puts you in direct conflict with the client. No ethical attorney would even consider it.”

Megan Crane, one of Dorsey’s current attorneys, told me that her client, who has been moved out of the honor dorm and into solitary confinement ahead of his scheduled execution, is struggling as much with shame and remorse as with the likelihood that he’s going to die in a few days.

He’s working with his spiritual advisor “to make peace and find peace,” she said. But we should not be at peace about the illegality of his sentence.