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Prosecutors: money doesn't trump other factors when considering death penalty

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Cost of Justice

At first, Pike County Prosecuting Attorney Darrin McDonald says it was clear the death penalty was warranted against a man accused of murdering three people and wounding another before leaving them all in a cornfield in 2006.

Even though that capital punishment case would have potentially crippled the small rural county’s budget and how the prosecutor’s office conducted the rest of its duties, he describes that as the right move to ensure justice for the community and families of those victims.

But once the full scope of the length and cost of a capital case unraveled, the mood changed and within a year of the death penalty being filed, McDonald said the county opted against seeking capital punishment in favor of a life without parole guilty plea for defendant Nicholas Harbison, who’d led police on a nationwide manhunt before he was arrested and ultimately tried and convicted.

A complete reversal in what the victims’ families wanted surprised him most, but he doesn’t regret the decisions made and says it ended up preventing the county from paying out hundreds of thousands of dollars for a death penalty trial instead of $84,000, the estimated maximum trial cost for both the prosecution and the defense in this case.

“At some point, it was apparent to the families that they wouldn’t get any closure from the death penalty system and it wasn’t worth it,” McDonald says now. “But if it had just been about the cost, we would have had a death penalty case, no matter what it meant for the county budget. Ultimately in this case, it was about the wishes of the victims’ families and making sure this person can’t do this again – and that meant life.”

At a time when capital punishment requests are down and some state officials are questioning the cost and overall effectiveness of seeking a death sentence, the issue of what it’s worth to go after this ultimate punishment is getting more scrutiny in Indiana and nationwide.

Prosecutors throughout Indiana say that the financial costs of capital punishment are part of the process in deciding whether to pursue that penalty, though it’s not the determining factor. The need to obtain an adequate measure of justice for the victims and community is what solidifies the choice.

Some give the financial cost more weight than others, and pressure can mount based on what evidence exists and the public drive to achieve justice. But it’s a decision that none say is made lightly.

Johnson Superior Judge Lance Hamner, who served as the county’s prosecutor for 16 years before taking the bench in 2009, reflected on his handling of two death penalty-eligible cases during his tenure and how he made the decisions to pursue that punishment. In one of those cases, Hamner ended up with a life without parole sentence after evidence was suppressed because of a flawed capital search warrant. But he secured a capital sentence on the other case against Michael Dean Overstreet, convicted for the murder of a Franklin College student in 1997. He was sentenced to death in 2000, and that conviction has been upheld on appeals at the state level. Overstreet’s appeal is now winding its way through the federal habeas corpus process in the Northern District of Indiana.

“There’s no mathematical formula to making that kind of decision,” Judge Hamner says now about choosing the capital punishment path. “No one factor is dispositive by itself, you just kind of have to weigh everything together. You just kind of know when you have to. But this really requires substantial deliberation to decide if everyone involved can endure what needs to be done to see it imposed.”

When considering Overstreet’s fate, the former prosecutor says that cost wasn’t a deciding factor, but it was something he talked a lot about when weighing the issues. Costs were not calculated from the prosecutor’s side, but Indiana Public Defender’s Commission reimbursement figures, which represent half of total reimbursable defense costs, show $217,557 was spent by Johnson County for defense capital costs from 1998 to 2002 when Overstreet was being tried. The total defense cost was $435,114 for the trial phase.

“Under the circumstances, justice required we go forward with the death penalty,” Judge Hamner said. “We didn’t calculate the costs from our end, but I know it wasn’t cheap. We had to bring in a jury and sequester them for the month-long trial, and additionally there was just a lot of wear and tear on the prosecutor’s office.”

Much of the prosecution’s work is built into the county budgets and existing duties, but prosecutors must essentially take on a capital case like a full-time job and make sure the rest of the office can continue handling the non-capital and daily tasks without trouble. That can be a problem for smaller counties, and some ask for budget increases or even small special tax assessments to pay for that. National reports show that death penalty cases have bankrupted some small communities.


Terry Curry Curry

In Marion County, newly elected Prosecutor Terry Curry has faced some criticism for his decision to pursue a death sentence against Thomas Hardy, the man accused of fatally shooting Indianapolis Metropolitan Police Department officer David Moore in January. Curry has said he knows that penalty will be costly and that the 60-year old defendant will likely die naturally before he would get through the legal system to be executed, but he believes it is justified in this case.

“Anything less than the ultimate possible punishment minimizes the sacrifice of Officer Moore, and indeed, all public safety officers who have lost their lives in the line of duty,” Curry said, noting that his office has considered the merits of the case and evidence along with the financial cost and Hardy’s age.

Curry said the prosecutor’s office, even before this incident, had formulated a committee review procedure to evaluate the circumstances of any homicide which would involve capital punishment.

The most recent decision is in contrast to what his predecessor, Carl Brizzi, had decided involving the Hamilton Avenue murders that occurred in Indianapolis in 2006. In that case, seven people were murdered and the prosecutor ultimately decided not to pursue the death penalty because of evidentiary concerns.

That just points out how each case is different and must be carefully weighed, according to Hamner. Factors range from whether the case is a statutory fit for the death penalty, how strong the evidence may be, what the victim family feelings are, and what kind of burden that type of case might put on a prosecutor’s office and county budget.

“You’re talking about taking away a person’s life, and that isn’t a decision that can be entered into lightly,” Hamner said.

The return on investment is dismal – some studies say less than 5 percent of all original death penalty requests end with that punishment, and Indiana’s own figures from 2000 to 2007 show that only six of 26 murder cases where the death penalty was sought ended up with that sentence at the trial stage. Most don’t make it through the appellate process unaltered.

For Hamilton Superior Judge Steven Nation, who as a prosecutor initially sought the death penalty in a Carmel triple-murder case, the circumstances of the crime itself weighed on his mind the most.


Nation Nation

That involved the March 1994 murders of teenagers Nick and Lisa Allemenos and 23-year-old Chris James inside a ransacked Carmel home, with each bound and gagged with duct tape and their throats slit. Three suspects were arrested, including Kofi Ajabu, and the prosecutor at the time announced he’d seek the death penalty with support from the teenagers’ mother. Apparently, a robbery for rent money had turned into a triple homicide.

“The thing that’s always startled me more than anything about the Carmel murders was the viciousness of the death,” Judge Nation says now. “Those three victims were killed over such a long period of time, not quick like you normally see. That stood out in my mind and was one of the main points that convinced me we needed the death penalty.”

Judge Nation took the bench in early 1995, and his chief deputy Sonia Leerkamp became prosecutor. The day of the sentencing hearing, the prosecutor’s office withdrew the death penalty, and Ajabu received a life without parole sentence that’s been upheld on appeal.

Looking back, Nation says he doesn’t see that cost was involved in the decision making at the local level. However, he pointed out his frustration that crimes like this in a small county might truly warrant a death sentence, but people can’t obtain that justice because of the financial burden. Something should be done about that, he said.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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