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Fayette County faces $123,232 judgment for Munchinski legal bills

By Jennifer Harr 6 min read

On Tuesday, attorney Noah Geary asked a visiting judge to put one of the Fayette County commissioners in jail until his counsel fees in a murder case are paid. And while Northumberland County Senior Judge Barry F. Feudale refused, the judge entered a judgment against the county to the tune of $123,232.49 plus 6 percent interest – and said he will sanction the cash-strapped county when he enters a ruling at a later date.

Geary, a Washington County attorney who successfully represented David J. Munchinski in a post-conviction appeal, has been trying to collect on court-ordered payments for his services since an order was handed down in December 2004. Six months later, Geary said, he has yet to see a penny from the county, so he went to court to get his payment.

“We are not willfully disrespecting this court,” county solicitor Joseph Ferens said.

Ferens argued that the county wasn’t notified about the hearing to set fees in time to appear at the hearing, the fees could not be applied retroactively and that Munchinski did not have the right to select Geary as his court-appointed attorney.

Feudale recognized Geary as a court-appointed attorney in December 2004, after Geary did more than two years’ work on the case. The judge ordered two separate payments, totaling nearly $102,000 at a rate of $50 per hour. Additional hours have since been added, including approximately $7,000 in time Geary spent trying to collect his money from the county.

“If Fayette County wanted to squawk, they could have appealed your decision,” Geary said.

“Or asked for reconsideration,” Feudale added.

Ferens asked Feudale to dismiss the contempt petition and rescind his order that the county pay Geary, both of which the judge denied.

The proceeding got tense when Geary questioned Commission Chairwoman Angela Zimmerlink about statements she made to a reporter in December 2004, at the time of the tentative county budget. At that time, an article indicated Zimmerlink said the county had approximately $100,000 set aside in an unappropriated balance line item. She testified she never made that statement.

When Zimmerlink testified that line item never specified how much money was set aside for the payment, Geary accused the county of playing “cat and mouse games.”

Ferens said that claim offended him, and said he was handling the matter by presenting his arguments in court.

Geary subpoenaed all three county commissioners and controller Mark Roberts to attend the hearing.

Zimmerlink eventually indicated that the county had approximately $75,000 set aside for the bill.

“The only plausible argument made by (Ferens) was the inability to pay, but in reality, there was ability to pay. They set aside $75,000,” Geary said.

He asked Feudale for several things, including a daily fine for Fayette until his bill is paid, a retroactive increase of his fee to $100 and a future increase to $100 per hour.

Geary also told the judge that since Fayette officials have not paid his bill so far, a monetary fine might not do the trick.

“If you order a commissioner incarcerated until I am paid in full, I guarantee you I would be paid before I walk out of this courthouse today,” he said. “That would be the simple remedy. They’d cough it up.”

Ferens called Geary’s incarceration request “grandstanding,” “ridiculous and ludicrous.”

He said Geary’s court appointment to represent Munchinski 21/2 years after he took the case was akin to “giving him an open checkbook.”

“We feel this was improper, and that’s why we aren’t paying. We feel an obligation to the citizens of this county to protect their funds,” Ferens said.

Feudale called Ferens’ concern for county residents “a nice sound bite utterance.”

“If they have concern for the taxpayers, they’ll be doing the right thing,” Feudale said.

Feudale said the county’s claims “lack a legal and factual basis.” He also said that Zimmerlink’s testimony about the money set aside in the tentative budget “strain credulity.”

Feudale said he took into account the county’s financial woes when he set Geary’s fee at $50 an hour. He said Geary could have been entitled to more than that amount, but he “did try to minimize the fiscal impact.”

After the hearing, Geary criticized the county commissioners as “unprofessional.”

“If they think $100,000 is a lot of money, wait until I file my (civil action),” Geary said.

He indicated he intends to sue the county next month in federal court for Munchinski’s wrongful conviction.

“We’ll see what 20 years of a man’s life is worth,” Geary said.

Zimmerlink declined comment after the hearing, noting she wanted time to speak with Ferens.

Munchinski, 52, was convicted of the 1977 shooting deaths of James Alford and Raymond Gierke. The men were shot and sodomized at a Bear Rocks chalet on Dec. 2, but police did not make any arrests in the case until 1982, when a witness came forward claiming to know details of what happened.

Witness Richard Bowen first told police he was the getaway driver for Munchinski and Leon Scaglione, but later expanded his statement after prosecutors gave him immunity. Bowen told police he was inside the chalet when Munchinski and Scaglione killed the men.

Munchinski and Scaglione were tried together in 1983, but jurors could not reach a verdict. Their cases were severed, and both were later convicted of two counts each of first-degree murder and sentenced to life in prison.

Scaglione later died in prison, and Munchinski, who has continually proclaimed his innocence, has spent the past 19 years filing appeals and fighting to clear his name.

In 2002, when Geary took over the case, he successfully petitioned for both county prosecutors and judges to remove themselves from participation. The state attorney general’s office and Feudale were assigned to Munchinski’s latest post-conviction appeal.

After a number of hearings, Feudale reviewed volumes of evidence and vacated Munchinski’s conviction last October for a number of reasons, including questions about Bowen’s first interview with prosecutors.

Geary contended a police report that was altered when given to Munchinski’s former defense attorneys referenced a taped interview with Bowen. Prosecutors and police officers said no tape existed, but Feudale said he believed it did.

The report that referenced the tape was altered by former county prosecutor, now judge, Ralph C. Warman. He testified he folded the report and photocopied it because it said the interview was taped when it wasn’t.

Feudale lambasted Warman and former district attorney, now judge, Gerald R. Solomon in his opinion, questioning if the men committed prosecutorial misconduct for not handing over the original police reports and several other pieces of evidence in the case.

Feudale’s decision to vacate Munchinski’s conviction is on appeal, and Munchinski remains in prison while that appeal is being resolved.

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