$1 million set aside for public defenders office to handle death penalty cases

Via the Missoulian:

KALISPELL – As Flathead County faces the possibility of its first death penalty trial since 1983, the state Office of Public Defenders is bracing for the enormous financial millstone that accompanies any capital case.

In its first major budget request of this kind since its inception in 2006, the office asked for and received approximately $1 million from the 2011 Montana Legislature specifically to defend death penalty cases.

The budgetary line item represents about one-quarter of the $4 million that was added to the agency’s budget; some, if not all, of the allocation will pay for the extensive defense work in the double homicide case of Tyler Michael Miller.

Formerly known as Tyler Cheetham, the 34-year-old Miller is charged with two counts of deliberate homicide for the Christmas Day shooting deaths of his ex-girlfriend and her 15-year-old daughter.

The Office of the State Public Defender has not had a capital case go to trial since its formation, but the estimated costs of defending such a case are exorbitant.

“We haven’t had a case go full term yet, so we are not able to tell the world what the exact cost would be using actual empirical data,” said Harry Freebourn, administrative director of the public defenders office. “With this case, however, we are proceeding as if it were a death penalty case. We are staffing accordingly and ensuring that the defendant has a legal team with the requisite skills needed to proceed.”

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Both the U.S. Supreme Court and Montana Supreme Court have carved out a very specific procedure governing death penalty cases, with added layers of legal precautions that don’t exist in a typical criminal case.

In making its budget request, the Office of Public Defender presented a detailed cost analysis to the 2011 Legislature regarding the cost of defending a death penalty case, Freebourn said. Even though numerous experts attested to the substantial costs, it posed a challenge given that the costs were never tallied under the old public defender system.

“Nobody kept track of those expenses previously,” he said. “That was one of the reasons behind assembling the statewide system. We want to make sure we are tracking every single penny.”

Freebourn said the $1 million line item includes all death penalty cases that might arise in Montana, and emphasized that it was not intended to be singularly exhausted on the Miller case. However, the latter remains a possibility.

“This one case could cost $200,000 or $300,000 or it could cost a million,” he said. “But the next death penalty case could come around the corner tomorrow.”

The Flathead County Attorney’s Office has presented strong evidence in support of the murder charges against Miller, but there is no such thing as an open-and-shut capital case when it proceeds to trial.

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Capital cases involve more investigation, more lawyers, more pre-trial motions, more expert witnesses, a longer jury selection process, and separate trials to determine a defendant’s guilt and whether the offense warrants a death sentence.

Add to that countless other expenses that accrue even before a single appeal is filed and the costs quickly stack up.

“The United States Supreme Court says death is different,” said Missoula Regional Deputy Public Defender Ed Sheehy, explaining the added requirements of a capital case. “Death penalty cases get very complex and they are very long and costly.”

Sheehy is on a short list of lawyers in Montana who possess the training, background and qualifications required to represent a defendant charged with a capital offense. Sheehy has represented eight capital punishment cases, and is currently assisting Public Defender Noel Larrivee with the defense in Miller’s case in Kalispell.

“To begin with, you have to file a lot of motions that you might not ordinarily file,” Sheehy said. “Then there’s a trial, a penalty hearing and an automatic appeal. Then the defendant gets a whole new set of lawyers who can raise all kinds of claims.”

Sheehy said the last time he represented a defendant convicted of a capital offense the penalty hearing alone lasted two weeks.

A capital case requires at least two jury trials, and often three – one to determine whether a defendant is guilty of the crime, another to determine whether aggravating circumstances exist to justify the death penalty, and still another (called a penalty hearing) at which prosecutors present additional evidence to support the defendant’s execution.

At the penalty hearing, the defense team must call on a mitigation specialist whose job it is to gather facts in support of any mitigating circumstances that might be relevant to the case – circumstances usually precluded from being admitted at a criminal trial.

Groups that advocate abolishing the death penalty say the amount of time invested in death penalty cases could be better spent investigating and prosecuting other cases.

During the 2011 Montana Legislature, the Montana Abolition Coalition actively supported Senate Bill 185, which would have abolished the death penalty and replaced it with life without parole.

Jennifer Kirby, who coordinates the Coalition, said Montana has never conducted a comprehensive study about what costs the state incurs in death penalty cases, but studies in other states suggest it is substantial.

“Such a study is needed to determine the true price tag and resulting tradeoffs of our state’s capital punishment system,” Kirby said. “The Montana Legislature should be eliminating waste in our system, and here it is allocating a million dollars to defend death penalty cases while it makes significant cuts in other areas that negatively affect thousands of Montanans.”

More than a dozen states have found that the death penalty is up to 10 times more expensive than sentences of life or life without parole, according to Kirby.

A 2002 study by Dartmouth College and the National Bureau of Economic Research, titled “The Budgetary Repercussions of Capital Convictions,” found that the costs of the death penalty are borne primarily by increasing taxes, with county budgets bearing the brunt of the burden.

In Montana, the Office of the State Public Defender has assumed responsibility for statewide public defender services, which were previously provided by cities and counties.

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In Flathead County, which hasn’t prosecuted a capital case in 28 years, since the 1983 deliberate homicide conviction of Ronald Allen Smith, government leaders maintain a contingency fund to help with the prosecution costs of a death penalty case.

“It’s the cost of doing business,” said Flathead County Commissioner Jim Dupont, who is also the former Flathead County sheriff.

Dupont was a sheriff’s deputy when he arrested Smith in 1982 in East Glacier for a double murder. Smith continues to challenge the state’s method of lethal injection, arguing that it constitutes cruel and unusual punishment.

When a death penalty case arises, Dupont said, “it doesn’t cost you all at once. It’s built into your reserves.”

“These don’t come along very often,” Dupont said. “I can only recall two in my whole career.”

To support the possibility of a death sentence in the Miller case, Flathead County prosecutors have filed excerpts of investigative interviews in which Miller admits to shooting Jaimi Lynn Hurlbert, 35, and her daughter, Alyssa Burkett.

In the filing, Flathead County Attorney Ed Corrigan wrote that the premeditated and brutal nature of the slayings warrant the death penalty.

The sworn affidavit portrays Miller as remorseless and even proud of the killings, and provides details about how he plotted and carried out the murders in an unprovoked ambush outside the home of Miller’s mother last Christmas Day.

Still, many hurdles remain before the case proceeds to trial in November. Last week, Larrivee and Sheehy asked a Flathead District judge to rule that Montana’s death penalty statutes are unconstitutional because the sentencing powers are vested in judges rather than juries.

Reporter Tristan Scott can be reached at (406) 730-1067 or at tscott@missoulian.com.