State death penalty cases averaged 17 years

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Cost of Justice

When the moment of death finally arrives, it ends what may be described as a long legal journey to justice within the capital punishment system.

Whether all the costs justify the justice sought is an ongoing debate that probably won’t be settled soon, but it’s one that Indiana’s legal community continues to discuss as courts analyze the legal issues and policymakers debate what justice is ultimately worth.

Path to execution

creason-steve-mug Creason

The nonprofit Death Penalty Information Center reports that the average appeals process in capital cases in the United States is now 12.7 years, longer than it’s ever been, and that exonerations have cast doubt on the entire system. As a result, courts generally are proceeding more cautiously on the cases before them. The appeals process is especially lengthy because death row cases have two levels of judicial review at the state and federal levels, as well as executive clemency, and the legal standards for defense attorney representation is more stringent than non-capital cases.

youngcourt-lorinda-mug Youngcourt

Since Indiana brought back the death penalty in 1977, data shows that the 16 people who have gone through the appellate process in this state before being executed have averaged 17 years on death row – ranging from 13 to 23 years. Four others have been executed in this state after waiving their non-mandatory appeals, and it’s usually only taken a year or two before the death sentence was carried out from the time that penalty was imposed.

Fourteen people are currently on Indiana’s death row, their sentencing dates ranging from 1986 to as recently as 2008. Some of those have been stayed by courts while others remain moving through the appellate process. Six death penalty cases remain pending at the trial level in Boone, Lake, Marion, Sullivan, and Vanderburgh counties.

Overall, the timeline for a death penalty appeal depends on how quickly the courts move and whether it gets reversed and remanded, or whether a case gets bogged down by more complicated legal issues such as questions of mental health.

“Every case brings a new set of dynamics, and there’s no cookie cutter death penalty case,” said Indiana’s Chief Deputy Attorney General Gary Secrest, who was chief counsel of the AG’s Appeals Division until mid-2010. “Courts move these death penalty cases along as well as they can, but that takes time.”

One of the state’s longest-running capital cases was brought to a close in September 2010 when Madison County ended its 27-year case against Mark Allen Wisehart. In the end, Wisehart was not sentenced to death – he instead received a 75-year prison sentence for a 1982 murder. The federal courts overturned the death penalty sentence in May 2009 and remanded for a new trial after it was discovered that a juror had become aware of a polygraph test not admissible in court.

death penaltyIndiana capital case statistics show the likelihood of a death sentence actually being carried out is as low as 5 percent.

The Indiana Public Defender’s Council analyzed data at the trial and appellate levels, from the death sentences handed down between 1990 and 2010 and more broadly the appellate level reversal rates dating back to the punishment reinstatement in 1977. Overall, only 16 percent of the prosecutor requests filed actually result in a death sentence, and the appellate reversal rate in total is about 68 percent – meaning of 100 total requests only about 32 would survive all levels of appellate and clemency review.

For that reason alone, many attorneys on the defense side contend that capital punishment isn’t worth the cost when the odds are it won’t be the end result. Prosecutors are more selective in the cases they choose to pursue, in order to survive not only the trial level but the long appellate process.

“The toll these cases take on the legal system is so huge, and they have a resulting ripple effect on the rest of the court calendar and system overall,” said Rick Kammen in Indianapolis, who’s handled state and federal death penalty cases and is considered a national expert in this area. “Everything becomes exponentially more complicated, and it’s such a drain on resources and energy for everyone involved.”

Legally speaking

Prosecuting and defense attorneys say many of the same issues are often raised at the appellate level – ineffective assistance of counsel, mental health questions, due process, or appropriateness of a sentence. Many novel legal issues can also be explored during this process and unresolved questions of law can impact how quickly the courts move on these matters, they say.

The capital system has significantly changed during the past two decades, after Indiana Criminal Rule 24 took effect in 1992 and created mandatory standards for trial and appellate capital counsel. In subsequent years, the state has seen changes including the addition of life without parole as an alternative to death, the banning of executions of the mentally retarded, and juries rather than the judge being given the final decision-making power on a death sentence. The method of execution has also changed from electric chair to lethal injection, and the state continues studying the issue of mentally ill defendants being sentenced to death.

“Lots of times (defendants) will try to raise the same issues they’ve already tried unsuccessfully to argue before, but really this can be an up and down process that’s not always clear how it will go,” said appellate chief counsel Stephen Creason in the AG’s Office.

Issues raised in cases sparking novel questions often go in waves, attorneys say, and some point to mental health and DNA or evidence testing as two areas that are currently evolving in the courts.

Often, the cases boil down to a battle of the experts during the appeals process because even the physicians can’t agree on someone’s mental state.

For example, in the capital case of Eric Holmes – sentenced to die for a 1989 double murder at a Shoney’s restaurant in Indianapolis – the proceedings have been on hold for the past year after the 7th Circuit Court of Appeals found the convicted murderer incompetent to proceed with the federal habeas review.

“Mental retardation has faded from appellate review because it’s settled, but really anything having to do with mental health is still out there unresolved,” Creason said. “That concept of mental illness isn’t a direct science and there’s a lot of interpretation even among the medical experts, and so that makes it difficult for the courts to decide.”

For those integrally involved in trials that resulted in the initial death penalty decisions, these later happenings can make them question whether it’s truly worth it.

“We have to ask why it takes 10 to 20 years to get through this whole appeals process, because that’s just not fair for the citizens or defendant or family of the victims,” said Hamilton Superior Judge Steve Nation, who handled one death penalty case in his time as county prosecutor and acted as special judge on a post-conviction case in the past decade. “Looking at the effectiveness, I don’t think it has much of a deterrent effect because it takes so long in carrying it out. You forget what a person is on death row for in the first place.”

Judge Nation handled a Carmel triple-murder case in the early 1990s before taking the bench, and he was the one who made the decision to pursue a death sentence even though that case ended up with a life without parole sentence. As a judge, he presided over the post-conviction relief proceedings of Norman Timberlake, who was sentenced to die for shooting a state police trooper in 1993. Timberlake died in prison of natural causes in late 2007 while awaiting the state Supreme Court’s setting of a new execution date.

death penaltyJudge Nation said he believes the death penalty is justified because society needs to be able to return in kind what’s been done to the community. But he also thinks the process needs to be revised to make it more effective.

“We could debate this issue forever and I don’t think either side is wrong, but to me unless we speed this up, I don’t see it being effective the way it’s meant to be,” he said.

Bedford death penalty defense attorney Lorinda Youngcourt said she doesn’t think pursuing capital punishment is worth the effort often required, given the typical result.

“If it is the ‘absolute test,’ then it has failed,” she said. “It brings little, if any, closure to the victim’s family and tortures the defendant’s family. It creates untenable situations for the correctional officers who are required to care for the defendant and are then asked to kill him. It is a political hot potato which lends itself to the players pursuing capital charges and imposing death sentences in order to make a ‘name’ to win an election, or to be seen as being tough on crime. These are all much bigger issues than what it puts the lawyers and judges through.”

Inconsistency by jurisdiction in the use and outcome of the death penalty is a problem too, Kammen pointed out. In Washington, D.C., for example, someone received life imprisonment for killing 48 people, compared to a Texas teenager put on death row for holding up a liquor store and killing one person.

“Every case is different, but it’s pretty hard to justify a system that is such a random mix of how and when things happen based on a prosecutor or judge involved,” he said. “I heard someone years ago describe this system as something that’s like being struck by lightning, and I don’t think it’s changed at all.”•


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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust: When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.