Weatherford Democrat

November 1, 2012

Program to help capital murder defendants, save county money

Judy Sheridan and Christin Coyne

— Parker County commissioners recently voted to join the Regional Public Defender for Capital Cases program, an action that could save the county thousands of dollars during the prosecution of expensive capital murder cases.

The program, funded through the Texas Indigent Defense Commission, represents defendants who are charged with the offense of capital murder and are eligible for the death penalty but cannot afford to hire their own attorneys.

The organization helps participating smaller counties meet the legal requirement to provide access to counsel for those defendants by providing a core team of four — two qualified attorneys, a mitigation specialist and a fact investigator — as well funds for an investigation.

The program, which began accepting cases in November of 2007, became available to Parker County and other small counties in northeast and north central Texas Oct. 1.

Parker County, which hasn’t tried a capital murder case since 2001, currently has four capital murder cases pending.

County Judge Mark Riley said Parker County would save a lot of money if a capital case goes to trial.

“[With this program], attorneys are provided for capital murder defendants,” Riley told the court, “and they handle everything, with the exception of expert witnesses and things like that.”

Current cases

Parker County currently has four capital murder cases pending, though the two most recent October cases have yet to be presented to a grand jury for indictment.

The death penalty has been waived for John Paul Webb, accused of killing his 1-month-old son in October 2010, and for Rodney Chase Pettigrew, accused of killing his girlfriend’s 1-year-old son in September 2011.

Seventeen-year-old Jacob Evans, charged with capital murder in the shooting deaths of his mother and sister earlier this month, will not face the death penalty, either.

Though 17-year-olds are considered adults under Texas criminal law, a 2005 decision by the U.S. Supreme Court in Roper v. Simmons made 18 the new minimum death penalty age, according to Assistant District Attorney Jeff Swain.

It’s not yet clear whether Hector Trejo, accused of violently slashing and stabbing the throat and neck of a woman earlier this month who reportedly refused to let him borrow her car, will face the death penalty.

His attorneys, however, newly appointed by the program, are preparing for just that.

“The statute for the appointment of counsel in capital cases ... the presumption is that it’s a death case unless the prosecutor affirmatively waives the death penalty in writing,” Stoffregen said. “If there is no waiver, the assumption is the prosecutor will seek death.”

Defense cost

To join the program, participating counties contribute according to a formula that takes into account both population size and the number of capital murder cases filed during a 10-year period, between 1998 and 2008.

The amount that counties contribute increases each year, reaching a maximum during year six. There is no cost to counties during the first year.

According to its recently approved contract, Parker County will pay $19,171 the second year, $25,561 the third, $38,341 the fourth, $51,121 the fifth and $63,902 in year six.

“It’s essentially an insurance risk pool,” Jack Stoffregen, chief public defender for the program, explained. “Counties hope they never have a case, but if they get one, they have protection.”

A capital murder case can cost $250,000 and up, Stoffregen said.

Stoffregen said the program does not cover appeals.

“There are inherent conflicts between the trial attorneys and appellate attorneys,” he said, “with the appellate attorneys raising the issue that the trial attorneys are not doing a good job.”

Death penalty factors

The cost of pursuing the death penalty can be significant, Swain said, but prosecutors can’t let affordability affect the decision of whether or not to seek it.

“We’re certainly aware of it, but we can’t be driven by it,” he said.

After determining the case meets one of nine legal definitions for capital murder — which include murder of a child under 10 years of age, murder during the course of committing another felony, murder for hire and murder of a peace officer or firefighter — prosecutors must look at other factors when deciding whether or not to seek the death penalty, Swain said.

They consider the way the offense was committed, the facts surrounding the case and the defendant’s criminal history, he said. They also look at the defendant’s other history,  factoring in any offenses that demonstrate a threat to the community, even though the defendant may not have been convicted of them.

“In order to decide to seek the death penalty, you have to have the kind of facts to support seeking the death penalty,” Swain said.

During the punishment phase of a capital murder trial, a jury must look at whether there is a probability that the defendant poses a continuing threat to society and whether there are any mitigating circumstances warranting life imprisonment.

Prosecutors must decide if they can reasonably expect to prove certain things to the jury regarding those issues.

Though there will be other expenses associated with a death penalty case, Swain said, having a contract with the public defender program gives the county a set figure for much of the defense costs and cuts down on the risk of blowing the indigent defense budget for a year or longer.

An expanding program

The public defender program dedicated to capital murder cases began in West Texas and has administrative and trial offices in Lubbock, as well as satellite offices in Amarillo, Angleton, Burnet, Kingsville, Midland and Uvalde.

Of the 240 counties eligible for the program, Stoffregen said, 193 — grouped in nine regions throughout the state — have agreed to participate so far. Fourteen counties — with populations greater than 300,000 — are ineligible due to a high number of capital cases and an abundance of qualified attorneys.

The organization will open its first local office Nov. 5 in Wichita Falls, Stoffregen said. A second office east of Dallas will follow Jan. 1.

“We want to be located geographically so we can have a member of the team in jail, seeing the client, in 24 hours,” he said. “Sometimes we’re talking to witnesses before the police.”

The offices are staffed with specialists who are teamed to boost efficiency, Stoffregen said.

“This is all we do,” he said. “Capital work is time-consuming. You almost have to shut your private practice down to pursue it.”