Saturday, November 01, 2014

Just or not, death penalty comes at a cost for county

By BOBBY BURCH, Herald Staff Writer | 5/15/2013

The last time Kansas killed a convicted murderer — June 1965 — gas cost about 31 cents a gallon, Jim Crow laws segregated America and hanging was the method of execution.

While there’s no indication yet whether Franklin County Attorney Stephen Hunting will seek a similar penalty for Kyle T. Flack, the man accused of a quadruple homicide in rural Ottawa, a criminal complaint issued last week against the 27-year-old leaves open the possibility of capital punishment.

The last time Kansas killed a convicted murderer — June 1965 — gas cost about 31 cents a gallon, Jim Crow laws segregated America and hanging was the method of execution.

While there’s no indication yet whether Franklin County Attorney Stephen Hunting will seek a similar penalty for Kyle T. Flack, the man accused of a quadruple homicide in rural Ottawa, a criminal complaint issued last week against the 27-year-old leaves open the possibility of capital punishment.

The complaint, which was filed Friday in Franklin County District Court, outlines a host of major felonies against Flack, including two capital murder charges. Both “off-grid” person felonies, the capital charges not only heighten interest in the case, but also likely its costs when compared to other murder cases, an area county attorney with experience prosecuting capital murder cases said.   

“In a capital murder case, there’s a higher level of scrutiny — you can’t cut any corners, so it’s going to be more expensive,” Brandon Jones, Osage and Anderson counties’ attorney, said Wednesday. “Once you seek the death penalty, it brings extra scrutiny to your case, it brings extra cost to your case and it brings extra attention to your case, so you certainly don’t make [the decision to file a death penalty case] lightly.”

In November 2009, Jones filed a capital murder charge against James Kraig Kahler for killing most of his nuclear family. Using an automatic weapon, James Kahler shot his wife, Karen Kahler, 44, daughters Emily Kahler, 18, and Lauren Kahler, 16, and grandmother-in-law Dorothy Wight, 89. Jones ultimately proved that James Kahler killed his family after discovering his wife engaged in an extramarital affair with another woman.

Before moving forward with the capital charge, however, Jones said he carefully considered his options.

To constitute a capital murder charge, Jones said, the crime essentially must be premeditated murder, in addition to other qualifying factors, such as rape, killing a police officer or killing more than one victim. Such charges always are “off-grid” felonies, Jones added, which means they exceed the maximum penalty on Kansas’ sentencing grid, which offers guidelines on penalties.

While by Kansas statute only the county attorney can file a capital murder charge, Jones, who also serves as an Ottawa school board member, said he consulted several parties before making his final decision in the Kahler case.

“You’d do well to at least consult with your [county] commissioners, not before making a decision necessarily, but to let them know what’s going to go on,” Jones said. “I consulted with my sheriff and I actually did call in the [Kansas] attorney general’s office for help, so I consulted with the attorney general. But it’s a very political decision, and it’s a major decision.”

In a case spanning nearly two years, Jones successfully tried Kahler on the capital murder charge, for which jurors recommended the death penalty. The presiding judge concurred, and Kahler, now 50, remains on death row with eight other convicts at the El Dorado Correctional Facility, Jones said.

Not including his salary or work by the Osage County Sheriff’s office, Jones said, the case cost his office about $60,000, which was largely spent on producing expert and general witnesses. Nearly half that total, he added, was used to combat Kahler’s insanity plea with an expert witness. In addition, the Kahler murders were mostly contained to one crime scene in a house, Jones said, which is a significantly smaller area than what Franklin County officials now face with the deaths of Kaylie Bailey, 21, Lana Bailey, 18 months, Andrew Stout, 30, and Steve White, 31. While he’s unfamiliar with the Franklin County case’s details, Jones said, its multi-county crime scene could ultimately prove more costly for the county.

Such costs are common with capital murder cases, which can cost more to try than first-degree murder cases, Jones said.

“They’re both going to be expensive,” Jones said. “Obviously, to qualify for a capital murder case, there has to be something more egregious, something above and beyond, and usually that’s going to come to a higher cost.”

In addition to the costs, Jones said capital murder cases also garner more attention from both residents and media. The attention from filing a capital murder charge, he said, adds significant pressure for a prosecutor.

“In the enormity of that situation it’s pretty big when you’re asking the court and a jury to put someone to death,” Jones said. “Obviously you want to make sure you do everything right and make sure you’re doing the right thing. It’s not a speedy trial. You want to get justice for the victims. Getting qualified for capital murder, it’s got to be a pretty horrific crime and you feel the pressure to get justice. You’re spending a large amount of money, and it’s a major, high-profile case and you want to do a good job.”

Jones said there are some similarities between the Kahler and Franklin County cases. Both cases, he said, involved child deaths, multiple victims and grisly, tragic crime scenes.

“[The Franklin County Attorney’s Office’s case] is similar to mine in that we have four victims, one was 18-years-old, a college student and one was 16-years-old — in their case they have an 18-month-old baby,” Jones said. “Obviously, they are both horrific crimes. If we’re going to have a death penalty in Kansas, I certainly think that those are the types of crimes that the [Kansas] Legislature contemplated when they put the death penalty in place. It was to handle crimes that are so heinous — like this — that life in prison just doesn’t seem to be quite enough.”  

Many on social media agree with Jones. In a poll question, The Herald asked its Facebook audience “Do you think the Franklin County Attorney’s Office should seek the death penalty in the homicides near Ottawa?”

The question garnered more than 80 responses on the Facebook forum, and more than 92 percent of 868 poll respondents at www.ottawaherald.com agreed the office should seek capital punishment. Some, however, questioned whether death would be the most just penalty for the guilty.

“What these people [or person] did was evil and wrong,” Paul Thomas wrote. “Do they deserve to be punished? Yes. However, I can’t accept killing them for two reasons. One, it would be much more of a fitting punishment to give them a life sentence and have them locked away from society. Maybe that will drive the point home, and they will have to face it every day until the end. Second, my sense of morality maintains that killing anyone (with exceptions of course) is morally abhorrent, and I can’t support the death penalty as a human being and a Christian.”

Others on the forum, however, offered alternative means of capital punishment.

“I’m still saying hang him in the front yard of the court house,” Al Oli wrote.

“Build him a cage in the middle of nowhere with no protection from the elements, with no food or even water,” Trish Smith said. “Let him slowly die ... alone.”

Flack — who is charged with two counts of capital murder, four counts of murder in the first degree, one count of rape and one count of criminal possession of a firearm in connection to the quadruple murder in Franklin and Osage counties — is scheduled to appear in Franklin County District court at 1:15 p.m. July 8.

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