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Death-penalty cases put public defender $8M over budget

Attorneys Taylor Fox and Zach Murhey react to a request for information during a hearing May 26 in Maricopa County Superior Court for John Fitzgerald, who face the death penalty after a conviction for first-degree murder. Both attorneys were working with Herman Alcantar, of Alcantar and Associates, which contracts with Maricopa County's Office of Defense Services to provide legal counsel for criminal defendants who can't afford a private attorney. (Photo by Ryan Cook/RJ Cook Photography)

Attorneys Taylor Fox and Zach Murhey react to a request for information during a hearing May 26 in Maricopa County Superior Court for John Fitzgerald, who face the death penalty after a conviction for first-degree murder. Both attorneys were working with Herman Alcantar, of Alcantar and Associates, which contracts with Maricopa County's Office of Defense Services to provide legal counsel for criminal defendants who can't afford a private attorney. (Photo by Ryan Cook/RJ Cook Photography)

A Maricopa County agency that contracts with private attorneys to represent indigent criminal defendants is going to end the fiscal year over budget by more than $8 million, or about 63 percent, due to a glut of death-penalty cases and the high cost of defending them.

The Office of Public Defense Services has a long history of overspending, but county managers who have been reviewing the office’s expenses for the past three years said the costs were legitimate and necessary to comply with constitutional requirements for the state to provide legal defense for people who can’t afford their own attorney.

The real problem, county officials said, was that public defenders were inundated last year with death-penalty cases, each of which cost between $200,000 and $400,000 to defend.

Some county officials blamed the overspending on County Attorney Andrew Thomas, saying his policy of seeking the maximum penalty forced the county’s public defenders to take up more death-penalty cases, even though many of them ended with lesser punishments, often plea deals.

“If we use better judgment on the front end in charging, which of course is a function of the county attorney, then we don’t have to spend all these millions of dollars in cases that are just going to plead out,” Maricopa County spokeswoman Cari Gerchick said.

Other county officials, though, said the amount of money spent on death-penalty cases last year was due to a “perfect storm” of circumstances, including a U.S. Supreme Court decision that required retrials of many death penalty cases, a subsequent state law that required death-penalty sentences to be imposed by jurors instead of judges, the imposition of higher standards for defending death-penalty cases, and the Superior Court’s strict adherence to speedy-trial rules.

“We’ve had this bubble going through the criminal justice system, and this past year the Superior Court has made a real push to try to get through the bubble,” said Sandi Wilson, assistant county manager. “And in the process of trying to get through the bubble we’ve had to really gear up in spending in association with the public defense services agency and try to get attorneys on.”

The glut of death-penalty cases in Maricopa County followed a U.S. Supreme Court decision in ~Ring v. Arizona~ that changed Arizona’s rules in capital sentencing in 2002. The cases of 14 death-row inmates were sent back to Maricopa County Superior Court for re-sentencing. This time, juries rather than judges, determined if the inmates deserved the death penalty.

Jim Logan, director of Office of Public Defense Services, said those cases artificially inflated the inventory of death-penalty cases for years. The last of those 14 cases, which involves a 1996 murder, ended in a hung jury in January and is on its last days of a retrial, according to court records.

In response to the Supreme Court’s decision in ~Ring v. Arizona,~ the Legislature decided that juries not only determine whether defendants deserved death, but to also impose the sentence, which also jacked up the expense of capital defense because it required defense attorneys to prepare a case for leniency months or years before trial. The defense has to incur that expense even if the case ends in acquittal, dismissal or, more commonly, a plea deal.

Logan said another factor that added to the expense of capital defense was the American Bar Association’s guideline that a capital defendant have, at a minimum, a team that includes a lead counsel with specialized training in death-penalty cases, a co-counsel, an investigator, a mitigation specialist and someone to conduct mental screening.

A high number of death-penalty cases filed by the County Attorney’s Office also played a part, and many of those cases ended with no death penalty. According to the Maricopa County Attorney’s Office, 74 of 117 death penalty cases from February 2007 until February 2010 ended in plea deals for a lesser punishment.

Twenty four of the plea agreements were for second-degree murder and resulted in prison terms ranging from 11 to 22 years.

“If you’re judicious about filing death notices, you’re not going to be offering pleas of 11 years,” said Lee Ann Bohn, the deputy budget director who oversees criminal justice budgets. “It’s just vastly wasted resources on the defense side.”

Logan estimated the county spent $12 million this fiscal year on capital cases in which no death penalty was handed out. That represents about 77 percent of all money spent on capital cases in this year.

Thomas said there were many reasons for plea bargains. There is a 30-day window in which prosecutors can give notification of seeking the death penalty, so prosecutors do it based on the evidence at the time. As time goes on, a case can become weakened if witnesses are lost or new evidence appears that undermines the state’s case, he said.

Thomas said he continued his predecessor’s practice of having a panel of seasoned homicide prosecutors recommend whether a case was appropriate for the death penalty.

Statistics kept by Maricopa County Superior Court show that the number of new capital case filings have remained steady throughout the administrations of Thomas, who served from 2005 until April 6, and Rick Romley, who served as county attorney from 1989 to 2004 before returning to the office April 16 on an interim basis.

But the number of new death-penalty cases spiked during Thomas’ first year in office. He filed 43 percent more death-penalty cases in fiscal 2006 than in the years immediately before and after.
Thomas said he has challenged his critics to pick out which of the “heinous murderers” he shouldn’t have sought the death penalty against. In some cases, he said, he was criticized for not seeking the death penalty.

“I was just trying to call balls and strikes and seek justice,” he said.

Still, a county attorney’s spokesman said Romley is reviewing existing capital cases to make sure the death penalty is an appropriate punishment for each offense.

The Arizona Supreme Court recognized the growing crisis in Maricopa County in 2007 and created the Capital Case Oversight Committee, which found that despite the spike in of new cases in 2006, the increased time to process and resolve the cases was the greatest contributor to the high number of pending cases.

Wilson, the assistant county manager, said the committee made many recommendations that weren’t put into practice because they required additional resources at a time when revenues tanked.

Other policy changes meant to accelerate death penalty cases actually led to higher costs, according to county officials.

In March 2009, Maricopa County Superior Court established a new policy of effectively eliminating continuances in capital cases. Court rules require capital cases to be tried within 18 months from arraignment, though the court had typically allowed continuances.

The strict adherence to the speedy trial rules created a need for more defense attorneys, Logan said.
“While the resolution of larger numbers of cases is ultimately good for everyone in the system, it compresses the expenses into a shorter period of time,” Logan wrote. “This is especially true of expenses for cases in which contract attorneys are representing the defendant.”

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