Passing the Buck(s) in Denver

In an interesting move, a District Attorney in Colorado has defrayed some of the counties' budget burden caused by death penalty cases by billing the Department of Corrections (found by Sentencing Law and Policy):

Then there's Carol Chambers, the maverick district attorney of the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties. Her office is pursuing six of the seven capital murder cases now under way in Colorado. The crusade has drawn heat from death-penalty opponents, but it's also attracting scrutiny from the state legislature.

Using a 130-year-old statute that requires the Colorado Department of Corrections to reimburse counties for prosecuting crimes committed inside state prisons, Chambers has found an unusual way to pay for half of her death-penalty cases. She's billed the DOC hundreds of thousands of dollars in recent months, effectively shifting the cost of trying to execute three inmates from her county-funded budget to Colorado coffers. The tactic has forced prison officials to go to state lawmakers, seeking a special fund for "payments to district attorneys," and raised questions about whether Chambers can bill the state for the entire salaries of employees in her office, including a chief deputy making $131,000 a year.

The D.A., Carol Chambers, sent a response in to the paper, the Denver Westword, which was posted to their blog:

It does cost millions to pursue, obtain, and see a death penalty case through to execution. However, it does NOT have to. In cases where we are "only" seeking life without parole, there are not hundreds of motions filed, it does not take weeks to pick a jury, it does not usually take years to get to trial, it does not take months to hear pre and post trial motions.

Chambers goes on to pin the costs on the capital defenders, stating that it is they who up the ante and the District Attorney is forced to simply match them.

The reality of the situation here in Indiana is that both sides likely spend similar resources and both the defense and prosecution may feel caught in an increasingly expensive cycle while trying to outdo each other (see the earlier post, Death in Georgia, for a sampling of the numbers). After all, outdoing each other is their job and neither side should be faulted for this. However, that leaves us with the question of whether or not it's even worth putting this cycle of spending in motion. In the end, after all, in the 94% of Indiana death penalty cases where the defendant was represented by a public defender it's the taxpayer that gets the bill for both sides.

In Honor of Kelly Eckart

It's important to affirm tragedy. The 1997 murder of Kelly Eckart was, by all measures, a tragic and heinous crime. We're left shaking our heads wondering what went wrong that could lead someone to commit such an act and how we can possibly prevent this from happening again.

Too often, I think, those of us who work on raising awareness about issues with capital punishment can subconsciously "take sides" or are certainly seen as doing so. Some tend to gloss over the brutality of crimes for the sake of appealing to a deeper sense of humanity that might incite pity, and clemency, for the perpetrator of the crime. For society to move forward and earnestly address issues of crime and criminal justice, we must be willing to face head-on the worst acts perpetrated by individuals while attempting to counter them with the best that society has to offer: right to representation, due process, and other constitutional and civil liberty guarantees that define us as a people and nation.

This discussion will go on, but today it is important to remember that a young life was taken and the wake of the crime has left a trail of sadness and questions that may never be fully resolved. It is crucial to keep the Eckart family in our thoughts and prayers as they are navigated through the challenges of the justice system along with the accused.

Franklin College, where Kelly was a student, established the Kelly Nicole Eckart Memorial Scholarship Fund in her honor. Please consider making a gift in her memory and in support of the Eckart family (I was informed by the Franklin College Director of Major and Annual Giving that if the Fund is mentioned specifically in the "Comments" section of the online giving form that the donation would be properly allocated).

Execution Date Set for Michael Overstreet

The Indiana Supreme Court set an execution date of May 30th for Michael Dean Overstreet for the 1997 rape and murder of Kelly Eckart.

The Indiana Supreme Court set the execution date Monday after denying Overstreet his second appeal of his death sentence, according to a news release from the Johnson County Prosecutor's office.

Michael Overstreet has not exhausted federal appeals which makes this date unlikely to result in an execution. However, each time the Indiana Supreme Court-the final say for appeals on the state court level-denies relief, it must set an execution date. Therefore, it is typical for multiple execution dates to be set over the course of the entire trial and appeals process.

Justice and Science on NPR

This morning on The Diane Rehm Show, guest host Susan Page and George Clarke, a former prosecutor and now a Superior Court judge in San Diego, discussed the evolution of DNA evidence in criminal cases and its role in determining guilt and innocence.

You can listen to the program in both Real Audio format and in Windows Media.

The program included discussion of the power of DNA to exonerate the innocent. There remains, however, a mythical perception that DNA is omnipresent in murder cases and can therefore guarantee certainty in all convictions. As we've written before, DNA evidence is available in fewer cases than most people would suspect. A New York Times article from April 19, 2004 provided the following points from a study of exonerations:

In 88 percent of the rape cases in the study, DNA evidence helped free the inmate. But biological evidence is far less likely to be available or provide definitive proof in other kinds of cases. Only 20 percent of the murder exonerations involved DNA evidence, and almost all of those were rape-murders.

Additionally, the Death Penalty Information Center's list of death row exonerees points out that only 16 of the 127 exonerations had DNA evidence as a substantial factor in establishing innocence. Neither of Indiana's two exonerations involved DNA evidence.

Kennedy v. Louisiana

The Supreme Court is slated to Kennedy v. Louisiana at some point later this term. Kennedy deals with the constitutionality of child rape being considered a capital offense. While unquestionably an abhorrent crime, the 1977 Supreme Court case Coker v. Georgia outlawed rape as being a capital offense due to the disproportionate nature of punishment; taking a life for a crime that did not itself take life.

Sentencing Law and Policy has a good summary of the points in question and the Sex Crimes blog has links to more resources.

Death Penalty Charges for Six 9/11 Plotters

While things remain relatively quiet on the state level due to the current de facto moratorium on executions, the federal government has announced its intention to pursue the death penalty for six Guantanamo detainees. The following articles break down several aspects of the decision and its potential consequences.

Announcement of capital filing:
U.S. Seeking Execution for 6 in Sept. 11 Case

Recent justification by U.S. to international community:
U.S. Compares 9/11 Trials with Nuremburg

On the potential difficulties faced by federal prosecutors in pursuing the death penalty in these cases:
Trial of 9/11 Plotters Faces Hurdles
Hurdles Seen as Capital Charges are Filed in 9/11 Case

2007 Snapshot: Indiana in the National Context

This graphic from the Death Penalty Information Center's 2007 annual report (pdf) places Indiana behind only Texas, Alabama and Oklahoma in number of executions.

This fact, coupled with the 2007 ABA Report (pdf) which found Indiana to be in compliance with only 10 of it's 91 criteria for a fair and accurate death penalty should be a major concern to Hoosiers.

End of Nebraska's Electric Chair

In a 6-1 ruling, Nebraska's State Supreme Court declared the use of the electric chair as being unconstitutional (under Nebraska's Constitution). As the electric chair was the state's only means of execution, this means that Nebraska, for the time being, is in effect without the death penalty.

This is a particularly interesting development as there had been some speculation as to whether or not the de facto moratorium on lethal injection would in some way be applied to states that do not use lethal injection as the primary means of execution.

The opinion can be found here and a lengthier analysis at SCOTUS Blog.

The sole method of execution in Indiana is lethal injection.

A Death in Georgia

The February 4th issue of the New Yorker has a great piece of writing by author and journalist Jeffrey Toobin entitled Death In Georgia. The article focuses on the Brian Nichols case which has effectively bankrupted the Georgia Public Defenders:

...The 2003 reform in Georgia established a comparatively generous, open-ended compensation system for defense lawyers in capital cases. By contrast, Florida caps legal fees in death-penalty cases at fifteen thousand dollars, and South Carolina and Oklahoma allocate twenty-five thousand. Expenses for experts, however, often push the total cost in those states to six figures; in Georgia the average death-penalty defense costs about three hundred thousand dollars, and so it is not surprising that a case as complicated as Nichols’s has cost a great deal more.

The Nichols case is an extraordinary example of the potential costs of capital punishment cases.

Indiana has an agency for reimbursement of public defenders similar to the Georgia Public Defenders: the Indiana Public Defender Commission. Without a thorough comparison of the Georgia and Indiana reimbursement agencies, it's difficult to speculate how a Nichols-like case would play out here in Indiana but it can safely be said that a bill of $1.2 million -the current Nichols case tab- would be an unprecedented stress on an agency that spent $844,700 on all 2006-2007 capital cases.

Online Moratorium Resolution

We've set up an online resolution for individuals to sign calling for the establishment of a study commission coupled with a moratorium on executions in Indiana. The link will soon be up on the InCASE website in the 'Speak Out' section and in the meantime can be accessed directly here.

Be sure to forward it on once you've signed!

Why Death Penalty Cases Take Longer

In a January 15th interview with WISH TV, IUPUI Law Professor Joel Schumm discussed a few of the various reasons that death penalty cases take so long to reach trial:

So, viewers are used to seeing Law & Order where things are done in hour. It just can't be done in a death penalty case where there are a lot of times many witnesses; a lot of times there's scientific evidence that has to be looked at...

You can find the video with the rest of his discussion here (must be viewed with Internet Explorer).

Physicians and Executions

A crucial part of the debate in Baze v. Rees is the discussion of what an executioner's qualification should be, if any. The obvious choice for the administrator of the chemicals would be a physician. However, the American Medical Association has barred its members from any sort of direct participation in or supervision of executions and states have been forced to allow those without what should be deemed proper credentials to carry out the executions.

The New England Journal of Medicine recently held a round table discussion on the topic and the video and transcripts can be found here. (Thanks to Capital Defense Weekly for the find)