Friday, December 19, 2014

Analysis: Death penalty cases bring unique challenges, costs

By DOUG CARDER, Herald Senior Writer | 6/27/2014

Who determines the price of justice?

The answer for Brandon Jones is simple: “You can’t.”

Who determines the price of justice?

The answer for Brandon Jones is simple: “You can’t.”

In the extended lead-up to a September 2015 quadruple homicide trial in Franklin County District Court, 301 S. Main St., Ottawa, some community members have questioned what the final cost for the capital murder case could be, as well as whether it is fiscally prudent to seek the death penalty at a time of tight budgets for local governments. Jones, Osage County attorney, though not involved in prosecuting the Ottawa case, has a unique perspective on the issue.

An Ottawa resident and veteran prosecutor who successfully tried a capital murder case in August 2011 in Osage County, Jones said a capital murder trial should cost more because the death penalty is the ultimate punishment.

“Folks against the death penalty often use the cost as an argument for why there shouldn’t be a death penalty, but I don’t know that cost should be the No. 1 factor,” he said. “It only makes sense that a death penalty case should cost more. It involves the ultimate penalty, so there should be more scrutiny, there should be more caution taken. I think the debate ought to be based more on morality grounds rather than on cost.”

Defending a death penalty case costs about four times as much as defending a case where the death penalty is not sought, according to a February 2014 study by the Kansas Judicial Council. Examining 34 potential death-penalty cases from 2004-2011, the study found that defense costs for death penalty trials averaged $395,762 per case, compared to $98,963 per case when the death penalty was not sought. Costs incurred by the trial court showed a similar disparity: $72,530 for cases with the death penalty and $21,554 for those without, the study said.

Franklin County prosecutors are seeking the death penalty against Kyle T. Flack, 28, Ottawa, in a spring 2013 quadruple homicide at a rural home west of Ottawa. Prosecutors and law enforcement officers have told local elected officials it is difficult to know exactly what investigating and prosecuting the case will cost as the Franklin County Board of Commissioners puts paper and pencil to the 2015 budget.

Investigation and ongoing court proceedings related to the case already have proven costly for Franklin County, Stephen Hunting, Franklin County attorney, told county commissioners as his office budgets for the trial to come. Hunting said the county expects the court proceeding to rack up $100,000 more in costs, based on estimates from Lisa Johnson, Franklin County counselor and administrator.

“Right now, it’s my understanding that Mrs. Johnson is requesting that $100,000 be set aside [in the budget],” Hunting said. “We believe that is a pretty fair number based on our study for expenditures from other jurisdictions that have cases such as this. It may be enough, it may not be enough. What we’re trying to do within our budget is take what we can out of our budget to help pay for those costs and expenditures.”


In a recent interview, Jeff Richards, Franklin County sheriff, also said it is difficult to pinpoint exactly how much the investigation has cost his department as he reflected on the case that shaped his first year in office.

Just days after Richards and Rick Geist, undersheriff, took office in spring 2013, three adult bodies were discovered May 6 and May 7 on a rural property at 3197 Georgia Road, west of Ottawa. The victims later were identified as Kaylie Bailey, 21, Andrew Stout, 30, and Steven White, 31. The remains of Lana Bailey, Kaylie’s 18-month-old daughter, were found about dusk May 11 in a creek in Osage County by an Osage County sheriff’s deputy. Testimony during Flack’s preliminary hearing in March indicated all four victims were killed with a shotgun.

Overtime accrued by the sheriff’s office during the quadruple homicide investigation and a harsh winter that required extra patrol officers to work multiple wrecks when ice and snow covered the county’s highways and roads on several occasions, took a toll on the department’s budget in his first year on the job, Richards said.

The department’s estimated expenditures for 2013 were $1.602 million, compared to the budgeted amount of $1.594 million, according to county budget figures.

“We finished the year 102 to 103 percent of what had been budgeted [for the department], but we were under budget in the other two departments I’m responsible for [911 dispatch center and county jail] and that more than compensated for what we were over [in the general fund for the sheriff’s office],” Richards said. “So at the end of the day, it balanced out.”

Ottawa’s police chief estimated the case cost the city more than $20,000 in the initial days of the investigation.

“We logged about 325 hours of overtime,” Dennis Butler said in an Aug. 27, 2013, email. “Total wages would be about $18,725. This is a conservative estimate that does not include increased benefits compensation, fuel, utilities from hosting up to 150 investigators at times, and more. It is safe to say that it cost the city more than $20,000. Future costs will include court overtime, additional investigation as requested by prosecutors ... [and other expenses].”

Prosecutors are seeking the death penalty against Flack in the deaths of Bailey and her daughter, they said, because the crimes had been committed in an “especially heinous, atrocious or cruel manner” in an attempt to cover up other crimes. Another aggravated circumstance cited Flack had been convicted of attempted second-degree murder in the May 2, 2005, shooting of Ottawa resident Steven Dale Free, who reportedly had fired Flack from a job earlier that day. Flack shot Free five times with a small-caliber handgun near a garage on Free’s property in Ottawa. Free survived the attack but died in December 2011.

If Flack is convicted of the capital murder charge, the prosecution team of Hunting, Vic Braden, deputy Kansas attorney general in the criminal litigation division, and James Ward, assistant Franklin County attorney, have asked the court for a separate sentencing proceeding to determine whether the defendant should be sentenced to death.

Interestingly, Braden and Ronald Evans, a member of Flack’s defense team and chief defender for the Topeka-based Kansas Death Penalty Defense Unit, were on the 13-member Kansas Judicial Council Death Penalty Advisory Committee that issued the death penalty study Feb. 13. The study was undertaken in June 2013 at the request of state Rep. Steven Becker, R-Buhler, a first-term lawmaker and retired district judge from Reno County.

The study, in part, was to capture the costs to state and local governments of investigating and litigating death penalty cases. As the committee quickly discovered, that was no easy task.

The committee sent surveys to the state Supreme Court, the Kansas Attorney General’s Office, the Board of Indigents’ Defense Services or BIDS (which monitors court-appointed public defense attorneys), the Kansas Bureau of Investigation, district courts, county prosecutors, county clerks and local sheriff and police departments. While the committee received responses from the Supreme Court, BIDS and the KBI, “a significant number” of prosecutors, law enforcement agencies and the Attorney General’s Office either did not respond or could not provide any information.

The attorney general in a letter to the committee said because so many variables were involved, any attempt to provide an estimate would be purely speculation. Similarly, in Johnson County, where seven of the 34 cases studied originated, the district court administrator, district attorney, county sheriff and county manager met and unanimously concluded it “would be impossible to reconstruct the hours of personnel time and cost of these cases with any fidelity.”

Because the committee only received investigative costs from the KBI and a smattering of other law enforcement agencies, committee members opted not to include investigative costs in the study because “KBI costs alone do not represent total investigation costs.”

The committee, however, was able to quantify costs to district courts and public defenders.

Total BIDS costs (trial and appeal) for nine trial cases between fiscal years 2004 and 2011 where the death penalty was sought totaled $3.561 million, or $395,762 per case. In the Flack trial and other cases where a public defender is used, BIDS defense costs are borne by the state, the study said. District court costs in those cases were $593,781 or $98,963 per case.

The capital murder trials averaged 40.3 days in length, compared to 16.79 days in murder trails where the death penalty was not sought, the study found.

The Supreme Court estimated it spent 20 times more hours on a death penalty appeal than it did on appeals in non-death penalty cases. The high court’s research staff devoted more than 13,600 hours to death penalty appeals in the past three years, according to the study.

According to the Kansas Department of Corrections, the annual cost to house an inmate convicted of the death penalty is $49,380, compared to the $24,690 it costs annually to house an inmate in general population. Kansas has not executed an inmate since the death penalty was reinstated in 1994.


As in Franklin County’s coming quadruple homicide case, Osage County set aside funds specifically for its capital murder trial against James Kraig Kahler, 48, who killed his wife, two daughters and their great-grandmother Thanksgiving Day weekend 2009 in Burlingame, county attorney Jones said.

“We set aside about $200,000 [for district court and county attorney’s office expenses] and we spent about $60,000 of it,” Jones said.

The prosecutor said the leftover funds were spent on renovations at the Osage County District Court building in Lyndon where the trial took place.

The trial lasted from Aug. 8 to Aug. 30, 2011, Jones said. Kahler was found guilty and two months later was sentenced to death in October 2011. His case continues to make its way through the appeals process, Jones said.

Kahler’s defense costs during the trial were $3,708 because he had hired a private attorney to represent him, according to the Kansas Judicial Council’s February study. Kahler’s appeal process thus far has garnered $178,751 in legal fees through a public defense team assigned to the case, the study showed. The costs for Kahler and several other cases in the study will continue to accumulate because the appeals process in those cases have not run its course, the study said.

As for the pending Franklin County death penalty case, Jones said the costs likely will be higher than the case he tried in Osage County because his case was limited to one crime scene and the processing of one vehicle. Because there was an eye witness to the crime, Kahler’s son, the case did not require testimony from a large number of people, Jones said, though the county did have some travel and lodging expense for some witnesses from Missouri and Texas.

“In the [Flack] case, there are multiple crime scenes and the costs associated with that, and there will be additional testimony required from expert lab witnesses and other factors that we did not have in our case,” Jones said. “So, [the Franklin County] case should cost more.”

The Osage County trial also had the extra expense of seeking a larger jury pool in the capital murder case, Jones said.

“We sent out 500 letters, hoping to get a jury pool of 300,” Jones said. “Normally, for a murder case [where the death penalty was not being sought] you would look for a jury pool of about 100.”

The county also incurred the expense in the Kahler case of bringing in extra county clerk office personnel from neighboring jurisdictions to distribute the 20-page questionnaire to hundreds of potential jurors in the Lyndon High School gym, Jones said. The typical questionnaire is one page in length, he said.

“The courtroom was not big enough to hold all those people, and we have a bigger courtroom than the ones in Franklin County,” Jones said.

Hunting, Franklin County attorney, said in a recent court hearing in the Flack case that the prosecution team was identifying sites where potential jurors could be interviewed.

During Hunting’s recent budget presentation to the Franklin County Board of Commissioners, the county’s capital outlay account, which is used for unexpected expenditures, might take on some of the court proceeding costs, county administrator Johnson said. In a worst-case scenario, she said, the county would be financially liable if the trial is moved outside of the county.

Steve Harris, board of commissioners chair, said the expenditures for the court proceedings didn’t bother him.

“From my personal viewpoint, you can’t put a price on justice,” Harris said.

Herald staff writer Dylan Lysen contributed to this report.

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