Critics challenge prosecutor pay system

Defense lawyers in ‘honor killings’ case decry alleged incentives to pursue death penalty

Appointed “pro tem” prosecutors tapped to handle capital murder cases can make tens of thousands of dollars in extra money by choosing to seek the death penalty over life in prison, a financial incentive defense attorneys are challenging in a high-profile Houston case.

Lawyers for Ali MahwoodAwad Irsan — a Muslim patriarch accused in a pair of brazen “honor killings” — say the lifeor-death decisions made by appointed prosecutors raise the specter they could be influenced by the potential for bigger paychecks from the pay system set up for court appointments.

Now, pointing to possible conflicts, defense attorneys are asking a judge to boot the pro tem prosecutors from the case before Irsan’s trial begins this month. Other defense attorneys agree the system could raise questions about fairness.

“This is clearly unconstitutional and violates the defendant’s right to a disinterested prosecutor,” said Amanda Marzullo, executive director of the nonprofit Texas Defender Services.

Anna Louise Emmons, one of three pro tem prosecutors assigned to Irsan’s case, pushed back against claims of a conflict.

“We made our decision on what to seek based on the case itself,” she said. “We would have absolutely no scruples, no ethics, if we based it on a financial situation.”

The Jordanian-American patriarch was charged with capital murder in 2015, three years after the slaying of 30-year-old Iranian activist Gelareh Bagherzadeh.

At first, the killing sparked conspiracy theories of an assassination ordered by Tehran. But police quickly zeroed in on Irsan, his wife and then-21-yearold son. Together, police alleged, the family had planned and carried out the killing of Bagherzadeh as she pulled into her parents’ Galleria townhome in Janu-

ary 2012.

Then, less than a year later, Irsan’s son-in-law, 28-year-old Coty Beavers, was gunned down inside the couple’s apartment. He'd told friends beforehand that if he was ever found dead, Irsan was to blame.

Both slayings, authorities said, were driven by Irsan’s ire over his daughter Nesreen’s decision to marry Beavers, a Christian. Bagherzadeh, a fervent Christian convert and Nesreen’s best friend, encouraged the marriage.

But when Irsan was finally arrested in a Montgomery County SWAT raid in 2014, it was not for the slayings but for a Social Security scam. That same day, the Harris County District Attorney’s Office filed murder charges, only to drop them later.

In 2015 — the same year Irsan, his wife and another daughter were sentenced to federal prison for the Social Security scam — prosecutors charged Irsan with capital murder. Two years later, they hit his son with the same charge.

Pro tems appointed

Initially, the cases were handled by prosecutors with the Harris County District Attorney’s Office. But in 2017, Kim Ogg took over the office, ousted some of the old guard and brought in a new crop of attorneys, including First Assistant District Attorney Tom Berg.

In February 2017, the district attorney’s office asked to be recused from the case because another attorney at Berg’s firm represented one of the state’s witnesses.

Sometimes — as when Montgomery County District Attorney Brett Ligon handled the case of cop killer Shannon Miles — judges hand the case to salaried lawyers with the state attorney general or other district attorney offices when the prosecutors ask to be recused.

In the Irsan case, however, the judge appointed three former county prosecutors as the pro tems: Jonathan Stephenson, Marie Ann Primm and Emmons.

The previous prosecutors had already planned to seek a death sentence. But when the new attorneys took over, Emmons said, they re-evaluated the case and, again, decided to seek death. The case has forced them to step back from their normal legal practices.

“We take our job extremely seriously,” Emmons said.

Stephenson and Primm did not return requests for comment.

Irsan’s legal team, Allen Tanner and Rudy Duarte, filed a motion in April asking a judge remove the prosecutors from the case over possible conflicts.

Trying a non-death capital case involves roughly 800 hours of preparation and 10 days of trial, the legal team said. A death case requires around 1,600 hours of preparation and 30 days in trial. Based on the hourly pro tem pay — which is the same $150 an hour appointed defense lawyers get — prosecutors can net about $124,500 more in a death case than in a non-death capital case, they said.

“The financial interest of the pro tem prosecutors, at a minimum, created opportunities for conflicts to arise and created at least the appearance of impropriety,” attorneys wrote. “This is the threshold required by the Supreme Court to reverse a conviction.”

Moving forward, prosecutors might have an incentive not to change their minds and offer life in prison, according to defense attorneys.

“The decision to seek death is an ongoing process on the part of a prosecutor,” Marzullo said. “Defense attorneys often continue to present prosecutors with new arguments for mercy as they are discovered until the eve of trial.”

Anthony Osso, one of the attorneys representing Irsan’s son, Nasim Irsan, is making similar arguments in his case, as prosecutors decide whether to seek death against him.

“It’s just the appearance of impropriety that’s a problem,” said Osso, who previously served as a pro tem and chose not to pursue a death sentence. “You can’t have an appearance of impropriety seeking death.”

Capital defense lawyer David Dow worried the impact could be more than just appearances.

“It's hard to imagine that the prospect of a larger payday would not matter in the decision-making process,” he said.

Long-time defense lawyer Patrick McCann highlighted other potential concerns with the appointments, including the lack of racial diversity and the pro tems’ prosecutorial background.

“These are life-time prosecutors who are now given carte blanche after learning their trade in one of the biggest ‘win at all costs’ cultures in the country,” he said.

‘Pretty ridiculous’

Some in the legal community panned the concerns raised in court filings.

“It’s insulting to suggest that they would seek death just to bill some extra hours,” said Murray Newman, a former prosecutor now doing defense work. “I mean, lawyers are unscrupulous but, damn, that’s pretty ridiculous.”

Toby Shook, a Dallas lawyer who has served as a pro tem in the past, didn’t see the appearance of conflict as inherently problematic.

“As long as the fact situation fits the situation where you’ve seen DAs seek death in the past, then it’s not a problem,” he said.

Shannon Edmonds, a staff attorney with the Texas District and County Attorneys Association, pointed out that death cases get two defense attorneys appointed.

“So it benefits the defense, too,” he said. “If it’s a conspiracy for them to make money as prosecutors, it would also be a conspiracy to line their opponents’ pockets.”