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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

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  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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