Killer criticized defender
January 2, 2009
Through two murder trials, it had been attorney Ken Brown beside defendant Erik Low, relentlessly challenging the prosecutor’s assertion that Low had intentionally shot and killed Michael Hirschey in a Park City apartment in 2003.
Brown, more than any other attorney could, understood the intricacies of the case — built upon forensic evidence, a key witness and Low’s own account of the shooting. For Low, as a third trial in the killing loomed, this one on a manslaughter charge, there was not another attorney who could defend him.
But the two trials — one ending in a hung jury and the other resulting in a manslaughter conviction that was later overturned on appeal — had left Low’s family without the money to pay for Brown to represent him in a third trial, and the prospects of a public defender being assigned to Low were unappealing to the defendant.
He asked Judge Bruce Lubeck in September to assign Brown as the public defender in the case. The judge declined, saying there was no basis to do so since Brown was not contracted to work as a public defender. Instead, it would be Paul Quinlan, a public defender, representing Low, the judge determined.
A month later, Low had become displeased with his representation, according to a handwritten letter Low sent to Lubeck dated Oct. 15. It was later put into the Third District Court case file. The five-page letter, signed by Low with his inmate identification number, challenged the service of Quinlan, saying that the public defender himself mentioned to Low that the case was the "biggest hand-off" from one attorney to another that he knew of.
"Right away he showed serious concern about being able to handle this case with regards to actually taking this case to trial," Low wrote.
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Low described what he saw as Quinlan’s bungling of the research, saying the public defender unsuccessfully tried to obtain boxes of material from Brown. He told Low he might have to issue a subpoena for Brown to provide the material, the letter said. Instead, Low mentioned, Quinlan could have obtained the material from the Summit County Attorney’s Office, which prosecuted the case.
" . . . In my worthless opinion Mr. Quinlan has no real ambition in defending this case at trial," Low wrote.
He described to the judge some of the talks between Quinlan and Summit County Attorney David Brickey, the lead prosecutor in the case, about a plea bargain and sentencing. Low, though, seemed exacerbated. He told Lubeck in the letter he worried about Quinlan’s loyalty.
"As you can imagine, this is all very important to me and my concern centers around whether or not my attorney Mr. Quinlan is working with Mr. Brickey or for Mr. Brickey," the letter said.
The letter provides a glimpse into the behind-the-scenes communications that preceded Brown’s reappearance in the case. Brown soon afterward agreed to represent Low on a pro bono basis, after Low briefly switched public defenders. He negotiated a plea agreement with Brickey, and Low pleaded guilty Dec. 1 to a manslaughter charge. Sentencing is scheduled Jan. 12.
As part of the deal between Brown and Brickey, they agreed that Low should be released from prison. He has been imprisoned most of the time since the 2003 killing. Lubeck need not abide by the terms of the deal, however.
In an interview, Quinlan disagreed with Low’s assessment of his performance, saying the prosecutor does not order him around. Quinlan, who has been a public defender 16 years in Utah, with most of his time in Salt Lake County, said he had negotiated a better deal for Low than Brown eventually did.
According to Quinlan, his deal involved Low pleading to a third-degree felony, a lesser crime than the second-degree felony that Low pleaded to with Brown as his attorney.
"Brickey no more tells me how to do my job than I tell him how to do his job," Quinlan said.
His public-defender contract is with Summit County, but he is not an employee in Brickey’s office. Quinlan said, though, the two are frequently on opposing sides of the courtroom and they have a "good working relationship."
Quinlan said public defenders are frequently appointed to people who would prefer to have their own attorney. He said it is "a more challenging relationship" with someone in that situation.
"Oftentimes the relationship is going to be different than it would be with a lawyer who was privately retained," Quinlan said.
Brickey, meanwhile, said in an interview Quinlan provided Low proper representation, declining an initial offer for a plea bargain. Brickey said Quinlan and himself disagree frequently, and the county attorney, like Quinlan, disputes Low’s description of the relationship between himself and Quinlan.
"I assure you, Mr. Quinlan and I have disagreed on a lot of things . . . Paul does not work for me," Brickey said.