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Death Penalty Pursuit: Cost v. Certainty

Texas Criminal Defense Law Firm

More prosecutors are deciding not to seek the death penalty in cases where it's an option, two local district attorneys said after two cases in which pursuing the ultimate punishment was an option.

"That's been the trend for probably the last decade and probably will continue to be a trend," Randall County Criminal District Attorney James Farren said.

Many prosecutors weigh the lack of certainty in securing a conviction against the high cost of litigation as reasons for not seeking the death penalty when available.

"The facts of the case are a tremendous factor in the decision on whether to pursue a death penalty or not," said Randall Sims, 47th district attorney. "You need to have a dead-bang cinch guilt-innocence case and one that you'll prove very easily the person on trial is the person who did it."

Sims decided not to seek the death penalty in the trial of Matthew Ray Watson that finished last week. Watson, 29, was on trial for causing the death of his 8-week-old daughter.

The Potter County jury found Watson guilty of reckless injury to a child but not capital murder, which prosecutors sought to try him for before jurors were asked to consider lesser charges. Watson received a 20-year sentence for the conviction.

Sims said he felt the decision to not seek the death penalty was proper since the Potter County jury elected for a lesser charge.

Prosecutors in Texas can seek the death penalty in a murder case if the victim is a peace officer or a child younger than 6 years old, or if the homicide involves multiple victims or occurred in the commission of another crime.

Farren called the capital murder trial of Levi King the "quintessential example" of why many district attorneys don't seek the death penalty.

Lynn Switzer, 31st district attorney, elected to pursue capital murder charges against King, who was accused of killing three members of a Pampa family Sept. 30, 2005.

King, who already was serving a life sentence in Missouri for murders there, was eligible for the death penalty in Texas. King pleaded guilty, but only 11 of the 12 jurors voted for the death penalty. He was sentenced to life in prison.

Switzer spent more than $750,000 - that was about 10 percent of Gray County's annual budget - to bring King to trial. The cost of the trial was one reason county commissioners were forced to raise taxes and withhold employee raises last year.

A 1972 U.S. Supreme Court case wanted to give jurors more flexibility in death penalty cases. Justices ruled it wasn't constitutional for jurors to decide guilt and punishment in one vote.

Most states, including Texas, introduced a second punishment phase if a defendant was found guilty. Here, a jury could decide if a defendant warranted the death penalty or a lesser punishment.

"Opponents of the death penalty are going to do through the back door what they can't do through the front," Farren said. "They're going to make the process so expensive, so resource-draining, so time-consuming that it becomes impractical."

In the re-sentencing trial of convicted killer Brent Ray Brewer last year, Farren said he devoted one-third of his staff to nothing but that case for six months.

"The rest of my staff had to pull all of the weight that we would have for half a year," Farren said.

Brewer was sentenced to death for a second time in August. A Randall County jury convicted Brewer in 1991 of capital murder and sentenced him to death. The U.S. Supreme Court overturned Brewer's sentence in April 2007, finding that the lower court didn't instruct the jury to consider his mental history.

Farren said many rural counties might bankrupt themselves if they try capital cases.

Said Sims: "How many experts are going to be involved, that, for the most part, is going to determine the cost of the trial."

David M. Green, 69th district attorney, has had three capital murder cases from Moore County in his 10 years in office. Green didn't seek the death penalty in the two cases he tried.

He sought stacked punishments in other counties where crimes were committed, to ensure the defendant would have an effective sentence of life without parole. The families, whom Green consulted before deciding whether to pursue the death penalty, were satisfied.

"It gave them closure to know it wouldn't go on for years and years (in appeals), even after the end of the trial," Green said.

Green is contemplating capital murder charges against a Cactus mother accused of inflicting fatal injuries to her infant son. He is awaiting autopsy results, as well as Texas Rangers' report on the matter.

For Sims, he said he prays every morning and night for help in making the right decisions in cases he tries.

"I've been doing this for 25 years and in talking with prosecutors across the state, and nobody takes that decision lightly," Sims said of seeking the death penalty.

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