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By any measure, New York state’s decision to re-enact the death penalty in 1995 has proven to be costly. On the defense side alone, since the capital punishment law took effect on Sept. 1, 1995, the state has paid $68.4 million to lawyers representing 702 defendants charged with crimes that might warrant the death penalty. A significant portion of that sum has been absorbed in representing the 13 defendants who have gone to trial for their lives, with six being sentenced to death and seven to life without parole. No similar statewide data exists for the costs of prosecuting death cases, but under a state aid program, adopted as part of the 1995 law, the state Division of Criminal Justice Services has reimbursed $5.1 million to counties across the state for the cost of prosecuting capital cases as of March 31, 2001, the agency’s most recent data. The $5.1 million figure by no means reflects the full amount of resources devoted by prosecutors around the state to death penalty cases. Some offices, such as the Brooklyn district attorney’s office, had sought reimbursement for any case that could potentially qualify for the death penalty and others, such as the Suffolk district attorney’s office, have only asked for compensation once a defendant has formally been notified that the death penalty will be sought. Others have taken a different approach. For instance, Onondaga County did not seek reimbursement for a death trial that lasted nearly three months. Barry Weiss, the Onondaga office’s administrator, explained that the prosecutors who tried the case were already on the county payroll. The state also provides $1.2 million a year in funding to the New York Prosecutors Training Institute, which has four lawyers available to provide assistance to district attorneys on capital cases. The Training Institute, which maintains a brief bank and lists of experts, also supports a program that provides help from other district attorneys’ offices to prosecutors overwhelmed with capital case motions. In addition, the state attorney general’s office has provided lawyers to help prosecute at least five capital cases. The triple-homicide case of Darrel K. Harris, the first person to be sentenced to death under the 1995 law, offers a snapshot of the costs involved in prosecuting and defending a capital case. The Brooklyn district attorney’s office reports having received $707,259 in state reimbursement to cover 100 percent of the time its attorneys had spent on the Harris case through Dec. 31, 2001. The Brooklyn office’s reimbursment for the Harris case, which includes expert fees and other non-personnel expenses, does not reflect the very substantial efforts of its lead appellate attorney, Jonathan L. Frank, who left the Brooklyn office in 1999 to become a senior associate at New York’s Skadden, Arps, Slate, Meagher & Flom. Frank, a former executive assistant district attorney who was also the lead prosecutor at Harris’ trial, estimates that he has donated more than 600 hours to the appeal. PROSECUTORS PITCH IN In addition, the Brooklyn district attorney’s office received help from prosecutors in eight other counties in preparing its 1,181-page brief for the Court of Appeals. The Brooklyn office has no way of valuing the time those prosecutors put into the appeal, though separate applications for reimbursement from the state fund may have been submitted by those eight offices. Members of Harris’ defense team estimate that to date they have spent $1.7 million worth of staff time and other expenditures. The Legal Aid Society, which represented Harris during the 10-week trial, estimates it spent $300,000 on staff time and another $152,000 on experts and a jury consultant. Legal Aid was unable to break out other non-personnel costs, such as the expense of obtaining daily trial transcripts, according to Russell Neufeld, the head of its capital defense division. The Capital Defender Office has poured $1.2 million into producing Harris’ 779-page brief both in terms of lawyers’ time and other costs such as computerized research, printing and travel. COURT COSTS The actual cost of keeping the courtroom operating during the 10-week trial came to at least $189,700, based upon the Office of Court Administration’s calculation that it took $3,794 a day to operate a criminal courtroom in New York City in 1998, when the Harris trial took place. Security was tighter in the Harris case than in the ordinary criminal case, and Justice Anne G. Feldman, who presided over the case, and her staff spent countless additional hours handling pretrial motions, which by all accounts were voluminous, and other issues necessary to bring the case to trial. THE DEATH FACTOR Not all costs associated with prosecuting and defending a capital case, however, can be attributed to the decision to reinstate the death penalty. After all, even without the death penalty, complex murder cases would have been prosecuted. But both prosecutors and defense lawyers who have handled capital cases reported that adding capital punishment to the mix has increased costs significantly. Monroe County District Attorney Howard R. Relin, whose office has taken three death cases to trial, estimated that the cost of prosecuting a murder case triples when the death penalty is sought. An ordinary murder case requires one, possibly two, prosecutors, he said, while a capital case needs “at least three or four.” The motions alone are “staggering,” he added, with the number of pages typically exceeding 1,000. Patrick Clark, a spokesman for the Queens district attorney’s office, said prosecutors there estimate that a capital murder case requires 300 to 500 percent more work than an ordinary murder case. Other prosecutors assessed the capital factor as having a less dramatic impact. Ronald J. Briggs, the district attorney of Essex County, who spent more than two years full-time prosecuting a death case that ended in a sentence of life without parole, put the increase at 25 percent. Former Suffolk County District Attorney James M. Catterson, whose office won death sentences in all three capital cases it took to trial, added that “while the death penalty is more expensive, it is not prohibitively expensive.” He noted, however, that in addition to the two assistants normally assigned to a murder case, capital cases require the presence of an appeals lawyer in the courtroom at all times. He added that the appeals lawyer needs to draw on the help of three or four other lawyers in the appeals bureau whenever a judge demands a brief on short notice. Defense lawyers also said the added costs in a murder case are substantial. Paul Gianelli, whose client, Robert Shulman, was sentenced to death by a Suffolk County jury for murdering three women, estimated that the capital factor added 200 percent to the cost of a case. The one factor that stands out is the “sheer volume” of paperwork involved in jury selection, he said. To prepare for voir dire, he recalled, he had to get a handle on 15,000 pages of jury questionnaires (a 30-page form was completed by each of 500 prospective jurors). Defense attorney William M. Tendy Jr., who won a life without parole verdict from a Dutchess County jury, said he spent about three months full-time immediately before the start of the capital trial as he does in any complex murder case. The difference, he added, was that, on top of that stretch of full-time work, he spent 50 percent of his time for the year and a half, working on the defense of Dalkeith McIntosh, who was convicted of killing his estranged wife and her daughter. Neufeld estimated that, without the death penalty, the Harris case could have been tried in three rather than 10 weeks. In a non-capital case, he estimated voir dire could have been completed in three days rather than eight weeks. In addition, only in capital cases is there a second trial, if the defendant is found guilty, to determine whether the sentence should be death or life without parole. The sentencing phase in the Harris case lasted a week and a half. To the extent that trials are shorter in non-capital cases, the record is less unwieldy and the task of the appellate lawyers accordingly simplified. The record in the Harris case, for instance, was 20,822 pages and cost $115,329 — all of which was paid by the state — to prepare in written and electronic form. In addition to prosecution and defense bills, the state is responsible for other death-penalty related costs. For example, the budget for the Court of Appeals has been increased by $533,000 a year to provide each of its seven judges with an additional clerk to handle death-penalty work, and the State Department of Correctional Services has spent $1.3 million to build a new death row, and it pays nearly $300,000 annually to guard the unit that can hold as many as 12 prisoners. DEFENSE EXPENSES The state’s annual expenditure for defense of capital defendants has seen a high of $13.6 million in Fiscal Year (FY) 2001, which ended March 31, 2001, and a low of $6 million in FY 1997. More than $40 million of the $68.4 million in defense funding has gone to finance the Capital Defender Office, which has 25 lawyers to defend death cases both at trial and on appeal, and is responsible for finding competent lawyers for defendants in all cases that it does not handle directly. Of the balance, $12.6 million has been given to other organizations, such as the Legal Aid Society, to handle death cases, with the remaining $15.5 million disbursed to private attorneys appointed by judges. The compensation for court-appointed counsel ran from a high of $1.1 million to the lawyers for Jermaine Page, who pleaded guilty in Brooklyn Supreme Court after being convicted of murder during a robbery and was sentenced to life without parole. The least amount billed was $377,701, from the lawyers for James T. Cahill, who was sentenced to death by a Syracuse jury for murdering his wife while she lay semi-comatose in her hospital bed. Defendants against whom the death penalty is being sought are entitled to two lawyers, whose rates, when they are appointed by the court, range from $75 to $125 an hour. Until recently there has been some uncertainty as to how much state reimbursement prosecutors could get for handling capital cases. But now that Kings County has received 100 percent reimbursement for time spent on any case where a defendant could potentially face the death penalty, it is expected that district attorneys’ offices around the state will be more aggressive in seeking reimbursement. The lion’s share of state reimbursement paid out to prosecutors before March 31, 2001 — according to the State Division of Criminal Justice Services, which administers the reimbursement fund — went to Brooklyn, $2.6 million; Suffolk, $970,158; Monroe, $860,804 and Queens, $423,269. District attorneys that offer support to other prosecutors under the mutual aid program can also put in for reimbursement. The aid the offices have provided to each other, particularly in handling the extensive motion practice in capital cases, has been substantial, said Sean M. Byrne, the institute’s executive director. For instance, the Brooklyn district attorney’s office provided significant help to Essex County in prosecuting Jeffery Glanda, a court reporter who was sentenced to life without parole for killing his wife. Assistant District Attorney Heide Mason, one of the members of the team that prosecuted Harris, was loaned to the Essex County office for six months. Additionally, Brooklyn’s appeals lawyers helped the Essex office in responding to motions raised by Glanda’s attorneys. In all, Brooklyn received $226,837 in state reimbursement for the work of its lawyers, including $13,208 it paid to retain experts, on the Glanda case. The Brooklyn office also received $140,000 in state reimbursement for the work put in by its lawyers during the motion stage of a capital case in Ulster County. In that case, Larry Whitehurst was eventually allowed to plead guilty in exchange for life without parole for the slaying of a 7-year-old girl.

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