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Tuesday, September 01, 2009

Ind. Law - It's the Law: Part 2 of "Death penalty explained in three parts"

Ken Kosky's "It's the Law" column in the NWI Times this week is the second of a three-part series on the death penalty. ( Part 1 is here.) This Monday's column looks at looks at how prosecutors decide whether to seek the death penalty:

Porter County prosecutors have charged more than two dozen homicide suspects in the past 20 years but have only sought the death penalty against three.

Of the three, one was a serial killer, one was a serial rapist and killer, and the third masterminded the kidnapping, torture and murder of a young woman who worked as a convenience store clerk.

Indiana law outlines which killers are eligible for the death penalty -- including those who kill while committing a robbery, rape or drug deal -- but Porter County Prosecutor Brian Gensel said prosecutors generally don't seek the death penalty against everyone who is eligible for it.

"The death penalty should be reserved for the worst of the worst," Gensel said.

Gensel said a lot of deliberation goes into the decision about whether to seek the death penalty.

Gensel said prosecutors consider the killer's mental capacity, mental state and history. Prosecutors also consider the "outrage factor" of a particular crime and how the jury would feel about recommending the death penalty for the perpetrator.

And, of course, prosecutors must consider the tremendous expense and scrutiny that comes with a death penalty case. Gensel said a standard murder trial might cost a county $30,000 to $50,000, while a death penalty case could easily cost $300,000 to $500,000 to take to trial. The extra expense results because defendants in death penalty cases are entitled to things such as money for expert witnesses and two experienced attorneys.

If prosecutors get a conviction against a killer in a death penalty case, the case is examined much more closely during the appeals process.

"It's a minefield for prosecutors because there's such scrutiny," Gensel said.

"I'm in favor of (the death penalty) philosophically ... but from a pragmatic perspective, it's fraught with stumbling blocks," he said.

The wishes of the victim's family also factor into prosecutors' decision making. Some families don't want to have to relive the tragedy for years or decades as a death penalty case goes through the appeals process.

Clark County Prosecutor Steve Stewart, a death penalty expert who authored the book, "Death Row 2009: Capital Punishment in Indiana," said the tenacity with which prosecutors seek the death penalty against killers varies from county to county. However, he said the Indiana Prosecuting Attorneys Council's Capital Litigation Committee meets monthly and will review a county's case and recommend to that county's prosecutor whether to seek the death penalty.

Like Gensel, Stewart agrees with the concept. Stewart said those who are put to death can't kill again, and, on a lesser level, it might deter others.

He said death penalty cases have decreased in recent years, due mostly to the cost of prosecuting them and the scrutiny that comes with the appeals process. He doesn't believe publicity surrounding innocent people on death row has caused the death penalty to fall out of favor, noting such cases are extremely rare.

Posted by Marcia Oddi on September 1, 2009 09:59 AM
Posted to Indiana Law