| (3) |
| (a) | Attorney fees and litigation expenses incurred in providing the representation provided for in this section and that the court has determined are reasonable shall be paid from state funds by the Division of Finance according to rules established pursuant to Title 63G, Chapter 3, Utah Administrative Rulemaking Act. |
| (b) | In determining whether the requested funds are reasonable, the court should consider:
| (i) | the extent to which the petitioner requests funds to investigate and develop evidence and legal arguments that duplicate the evidence presented and arguments raised in the criminal proceeding; and |
| (ii) | whether the petitioner has established that the requested funds are necessary to develop evidence and legal arguments that are reasonably likely to support postconviction relief. |
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| (c) |
| (i) | The court may authorize payment of attorney fees at a rate of $250 per hour up to a maximum of $120,000. |
| (ii) | The court may exceed the maximum amount described in Subsection (3)(c)(i) only upon a showing of good cause as established in Subsections (3)(f) and (g). |
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| (d) |
| (i) | The court may authorize litigation expenses up to a maximum of $40,000. |
| (ii) | Litigation expenses under Subsection (3)(d)(i) may include payment for an investigator, a mitigation specialist, a mental health and forensic science expert, and support personnel. |
| (iii) | The court may exceed the maximum amount described in Subsection (3)(d)(i) only upon a showing of good cause as established in Subsections (3)(f) and (g). |
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| (e) |
| (i) | The court may authorize the petitioner to apply ex parte for the funds permitted in Subsections (3)(c) and (d) upon a motion to proceed ex parte and if the petitioner establishes the need for confidentiality. |
| (ii) | The motion to proceed ex parte must be served on counsel representing the state. |
| (iii) | The court may not grant the motion without giving the state an opportunity to respond. |
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| (f) | In determining whether good cause exists to exceed the maximum sums established in Subsections (3)(c) and (d), the court shall consider:
| (i) | the extent to which the work done to date and the further work identified by the petitioner duplicates work and investigation performed during the criminal case under review; and |
| (ii) | whether the petitioner has established that the work done to date and the further work identified is reasonably likely to develop evidence or legal arguments that will support postconviction relief. |
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| (g) | The court may permit payment in excess of the maximum amounts established in Subsections (3)(c) and (d) only on the petitioner's motion, provided that:
| (i) | if the court has granted a motion to file ex parte applications under Subsection (3)(e), the petitioner serves the motion to exceed the maximum amounts on an assistant attorney general employed in a division other than the one in which the attorney is employed who represents the state in the postconviction case; |
| (ii) | if the court has not granted a motion to file ex parte applications, the petitioner serves the attorney representing the state in the postconviction matter with the motion to exceed the maximum funds; |
| (iii) | if the motion proceeds under Subsection (3)(g)(i), the designated assistant attorney general does not disclose to the attorney representing the state in the postconviction matter any material the petitioner provides in support of the motion except upon a determination by the court that the material is not protected by or that the petitioner has waived the attorney client privilege or work product doctrine; and |
| (iv) | the court gives the state an opportunity to respond to the request for funds in excess of the maximum amounts provided in Subsections (3)(c) and (d). |
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