TOM MONTGOMERY

having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

DIRECT EXAMINATION

BY MS. HARBERG:

Q: Will you please state your name?

A: Tom Montgomery.

Q: I know you have been with the public defender's office in Crittenden County for a long time. Could you tell me how long?

A: Almost seventeen years.

Q: Did you have anybody call and volunteer to represent --

A: Sixteen years. I'm sorry.

Q: Okay. Did you have anybody call you and volunteer to represent any of the three defendants in this case?

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A: I talked to Mr. Ford and I talked to Mr. Price.

Q: Did you call them?

A: No. They called me.

Q: Did they indicate they wanted to take the case?

A: They indicated they would be willing to be appointed if there was a conflict.

Q: And you have stated that you have a conflict for representing all three defendants?

A: That's correct.

THE COURT: Did you have a conflict to anyone individually or three of them specifically?

THE WITNESS: I have had a conflict on probably one more than the others.

THE COURT: Is there any reason why you couldn't have represented one or two?

MR. MONTGOMERY: I don't know. I made that information known to the municipal judge and had assumed when we went to the bond hearing that we would probably be appointed to one of them, but the judge just felt that the conflict I had would carry over to the others and didn't feel that I should be appointed on any of them.

When I talked to Mr. Ford and Mr. Price, I assumed that my office would be appointed to represent one of the defendants and only one.

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THE COURT: Are you saying that you had a personal conflict with one of those defendants?

THE WITNESS: Yes, your Honor.

THE COURT: Was there any reason why members of your office could not have represented one or more of them? The reason I ask this is because the issue is whether or not Crittenden County is going to bear the burden of appointed counsel outside of the public defender's office, and that is the reason the question is pertinent.

MR. MONTGOMERY: I understand, your Honor. Judge, it wasn't my call. The way I saw the case when it first came to the public, was that they were all going to need court appointed lawyers and the question was can my office handle all three. The nature of the offense -- I didn't see any plausible way -- the appearance of conflict was going to be there. My office could probably represent no more than one defendant out of the three anyway. So two lawyers were going to have to be appointed.

The question became which one could we represent if any, and I made that information all known to the municipal judge, and he felt that I shouldn't -- or my office shouldn't represent any of them.

THE COURT: All right.

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BY MS. HARBERG:

Q: Did you reach any kind of agreement with these defense attorneys as t how they would get paid or what the amount would be?

A: I discussed with Mr. Ford and Mr. Price the -- I wasn't certain. Of course, I had no authority to contract necessarily with them either, but speaking on behalf of the County I told them if the County was going to have pay for this, if we could try to reach an agreement on a fee cap that they might be agreeable to accept. And as best I remember the agreement was a seventy-five dollar fee cap to be billed out. And I don't remember -- fifty dollars an hour sticks in my mind, but I may be wrong on that. I'll defer to the other attorneys on the amounts on that.

But they were going to bill out seventy-five hundred dollars worth of fees. That would be the cap. Then if their time exceeded fifteen thousand dollars worth of services, that they would have the right to reapply to the judge for additional compensation.

So it was a little unusual. I have got no experience in doing this so that seemed to be what we had agreed upon -- the two attorneys -- Mr. Price and Mr. Ford and myself.

Q: That was if the County was responsible for payment. Now, what if the State was responsible? Did y'all discuss that?

A: We discussed that and I told them I had no authority to

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negotiate on behalf of the State. I didn't do that for the State and I think they understood that, that my agreement was not on behalf of the State.

Q: What is the normal procedure -- does Crittenden County have a list of volunteers for people in conflict type situations?

A: I really can't tell you. The Circuit Court Clerk keeps some type of list of persons that actively participate or handle criminal cases and if we don't have attorneys willing to take cases, then they are assigned usually out of the pool of lawyers that handle criminal cases. We haven't done the -- effective July one like the law indicates that you maintain some list of people. It hasn't been that formal as far as I know.

Q: Do you know if Crittenden County has passed an ordinance to raise court costs yet pursuant to Act 1193?

A: Yes. They just did that last week.

Q: Were you acting with Crittenden County's authority when you made this fee cap agreement?

A: I had discussed it with Brian Williams and with Joe Rogers, the County attorney, and they had approved it. In my opinion they had given me authority to enter that agreement with these attorneys.

CROSS EXAMINATION

BY MR. STIDHAM:

Q: Did you ever talk to Mr. Crow or myself about this issue?

A: No, sir.

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CROSS EXAMINATION

BY MR. FORD:

Q: Don't you recall that it was the terms of our agreement that the seventy-five hundred fee cap was if it was to be paid by the public defender budget as opposed to the county at large?

A: Ah, to be honest with you I didn't recall that specifically. It was my understanding that it was going to be paid out of the public defender budget.

Q: Were you aware of the current status of the law on June 4th when these appointments were made that it was the State of Arkansas who was responsible for paying them based upon the decisions of the Supreme Court?

A: That was my opinion at that time.

Q: So at the time we entered into this agreement it was the understanding that the State of Arkansas would be responsible but if for one reason or another the County was, this was a back-up agreement?

A: That's correct.

Q: And there was no fee cap discussed when the State was responsible as of the date of that appointment. Is that correct?

A: To make sure my answer is correct, no fee cap with regard to the State. The fee cap was only discussed with regard to the County.

Q: Didn't you and I discuss that in the event the State was

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responsible to pay, which we felt that they were, that we -- it was your opinion we could get whatever the Court would tell us was reasonable?

A: We discussed that I had no authority, and we were not making any agreement on behalf of the State. That's correct.

CROSS EXAMINATION

BY MR. PRICE:

Q: Prior to the murders, do you recall having another conversation with myself concerning conflicts in general in the Crittenden County office and also the Craighead County office?

A: Yes, sir, I believe so.

Q: As a matter of fact, I'm also parttime public defender over in Jonesboro.

A: That's correct.

Q: Do you recall at that time we discussed -- we didn't know how our office would operate under conflicts that would arise if the new act -- when the new act came into effect?

A: That's correct.

Q: Are you aware that the new act states that in the event of a conflict that public defenders from other counties or private attorneys should be appointed?

A: Yes, I understand that.

Q: Are you also aware that the act does not have any caps on any fees on lawyers that are appointed?

A: You're talking about Act 1193?

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Q: Right.

A: That's my understanding.

CROSS EXAMINATION

BY MR. DAVIDSON:

Q: Mr. Montgomery, I'm Scott Davidson. Have we ever discussed this matter?

A: Not to my knowledge.

Q: In fact we've probably never talked, have we?

A: I don't believe so. Nice to meet you.

Q: Nice to meet you.

THE COURT: Was Judge Goodson made aware of these discussions? Was Judge Goodson made aware of it at the time he made the appointments that there had been some negotiation or conversation, at minimum, with regard to compensation for appointed counsel?

THE WITNESS: I wasn't there so I don't know.

CROSS EXAMINATION

BY MR. ROGERS:

Q: Mr. Montgomery, you have served as public defender for seventeen years?

A: Sixteen years. I corrected it.

Q: The public defender's office prior to Act 1193 was funded by various court costs collected through our court systems. Is that correct?

A: That's correct.

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Q: And I believe at the time we recently -- within the last week or so the Quorum Court passed an ordinance pursuant to state statute to collect fourteen dollars maximum costs per case?

A: Depending on the type of case.

Q: Ten dollars maximum costs on all cases and four dollars costs on criminal cases?

A: I believe so.

Q: Prior to that time, the County had actually been collecting -- under the old statutes -- had been collecting sixteen dollars, had they not, for the operation of the public defender's office on court costs?

A: Again, depending on the type of case. I'm not sure, but I think it was something like that.

Q: For instance, this year what was the budget for your office?

A: I'm going to say it was approximately a hundred and eighty thousand dollars.

Q: How much -- well, let's go back to last year. Do you recall how much the County raised in costs through the enactment of these various court costs that they were authorized to enact?

A: I don't know. The reason I say that -- I don't handle the revenue side of it. It is generated and not touched by my office. These funds are dedicated so I don't have any reason to be concerned unless I'm notified that there is a shortage.

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Q: Do you know how much was actually paid by the County for court appointed attorneys other than the public defender office?

A: No. I don't know that.

THE COURT: Do you have those figures, Mr. Rogers?

MR. ROGERS: No, sir. I can get them through Judge Williams. I don't have them with me.

THE COURT: Do you know whether or not the amount collected exceeded the budget for the public defender's office?

MR. ROGERS: I do not know that, your Honor.

BY MR. ROGERS:

Q: You don't know how much was spent for court appointed attorneys in 1992?

A: No. Let me tell you why. Throughout the history of the public defender we have had a budgetary item -- a line item -- appropriated for court appointed attorneys. It's been in the neighborhood of twenty-five hundred dollars. It has never been used. Apparently the County was paying for court appointed attorneys out of the Circuit Court budget until this year or maybe even last year and I think this year they had already exceeded the twenty-five hundred dollars.

BY MR. ROGERS: Mr. Montgomery doesn't appear to have those figures available. I think they should be made available for the record if I might.

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THE COURT: You can add them as an affidavit of the County Judge or Treasurer.

(WITNESS EXCUSED)