As appeals stretch out, so do costs

Defense and prosecution costs, both borne largely by the state, mount in the years after a death sentence is handed down.

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One thing can be counted on in a murder trial where the death penalty is possible. It will eventually end, one way or the other.

Executions are the same. When one is scheduled, a 30-day countdown starts. If no court intervenes and issues a stay, the end comes (both literally and figuratively) shortly after midnight on the day the death warrant becomes valid.

But between is the appeals process, and unless an inmate chooses to waive his appeals that process can drag on for years.

In Washington state, the average length of time spent on appeals for the eight men on Washington state's death row ranges from seven years for serial killer Robert Yates, sentenced to die in 2002, to 18 years for Jonathan Lee Gentry.

The appeals process for a capital case starts almost immediately with a mandatory sentence review and appeal of judgement to the Washington state Supreme Court. If the conviction and sentence are upheld, further appeals are pursued through state courts via personal restraint petitions and, in federal courts, habeas corpus petitions which can (and usually do) lead up to the U.S. Supreme Court.

In the case of Cal Brown, who came within hours of being put to death this spring, the appeals process started on Jan. 28, 1994, the same day he was sentenced to death in King County. While his trial from jury selection to imposition of sentence took just over three months, the appeals have now gone on for more than 16 years.

At the state level Brown has had his aggravated murder conviction reviewed six times and each time the courts have rejected his claims, said King County Prosecuting Attorney Dan Satterberg. In federal courts, his conviction has been reviewed four times.

Brown's attorneys have argued more than "60 claimed errors in his conviction in front of the state Supreme Court twice and federal courts four times," Satterberg said. "Each of his appellate claims has been rejected on multiple occasions by multiple courts.

"His only claim now has nothing to do with his particular prosecution but with the constitutionality of the lethal injection method," Satterberg said, an argument the U.S. Supreme Court already rejected two years ago.

At the state level, the cost of dealing with appeals is borne by the county prosecuting attorney's office where the case originated. Satterberg said trying to calculate how much his office has spent dealing with Brown's appeals is "a tough question to provide a solid answer to since the work was done in-house by attorneys and staff who were already on the payroll."

Satterberg said, however, it was safe to say the "extraordinary" amount of appeals in Brown's case is directly related to it involving the death penalty.

"Non-capital cases generally get one (personal restraint petition) after the full direct appeal process. It is now 16 years after the jury verdict and (Brown) is still appealing an aspect of his case, this time the matter of the delivery of the sentence," he said.

The cost for defense attorneys also rises significantly in death penalty cases.

According to a 2006 Bar Association report, on direct appeal, which is the mandatory review after the trial, the cost for defense attorneys to appeal capital cases averages about $107,000 more in 2009 dollars than an appeal in a non-death penalty murder case.

The same report noted personal restraint petitions filed in state courts for death penalty cases would on the average cost approximately $145,000 (a figure adjusted for inflation) in public defense costs.

According to figures provided by Joanne Moore, director of the Washington state Office of Public Defense, more than $1.9 million has been paid for appellate work in state courts on the cases of the eight men currently facing the death penalty.

Costs range from a low of $134,296.01 for Darold Stenson to a high of $382,907.95 for Cecil Davis with an average cost of about $247,000 for all eight cases.

When the case moves into the federal courts, the state Attorney General's Office gets involved as well. But the expenses here vary widely, according to figures provided by Janelle Guthrie, communications director.

Between Jan. 1, 2002, and May 30, 2008, the cost for the Attorney General's office to deal with death penalty appeals ranges from about $296,467 for Brown to only $417.84 for Cecil Davis. So far, the AG's office has spent nothing on Yates' case, Guthrie said.

Altogether the Attorney General's office has expended $585,792.59 through May 2008 dealing with death penalty appeals in federal courts. In addition, its costs for legal challenges filed in connection with the executions of Charles Campbell, Westley Dodd and Jeremy Sagastegui totaled $280,457.01, Guthrie said. (Cost figures for the execution of James Elledge in 2001 were not available.)

On the defense side, the Bar Association report stated that in 2006 the rate of compensation for attorneys in federal capital cases was $165 per hour, which adjusted for inflation would be about $174 per hour today. The rate of compensation for federal appeals in non-death penalty cases was $159 per hour in 2006, the report noted. Adjusted for inflation, that would be about $168 per hour today.

The annual salary for a federal public defender working on a capital case was "likely" to be in the $100,000 to $125,000 range in 2006, the Bar Association report said. Adjusted for inflation, that would be about $106,000 to about $132,000 today.

Andy Porter can be reached at andyporter@wwub.com or 526-8318. Check out his blog at blogs.ublabs.org/randomthoughts.

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