Judge denies defense expert in capital case

Death penalty cases are expensive.

I spoke with a condemned man on San Quentin Prison's death row who had done the math: The money spent on his trial and appeals could have paid for a year of public education for all of the children in his home town.

The high cost is causing many prosecutors around the United States to think twice before seeking the ultimate penalty. In the Midwestern state of Indiana, for example, capital prosecutions are down in the wake of a state study showing the cost is 10 times more than if the government seeks a sentence of life without parole.

But one crusading prosecutor in Indiana has a more novel solution: Prevent the accused from mounting a defense.

"I feel very strongly about defense death penalty costs," said prosecutor Stan Levco of Vanderburgh County in objecting to a defense request to hire a psychologist.

Astoundingly, the trial judge agreed, and declined the defense request for a psychologist to assist in the defense of Jeffrey Weisheit. The defendant faces trial for murder and arson in the death of his girlfriend's two young daughters. Judge Daniel Moore approved the limited use of a psychologist, just through November, in order to help decide whether Weisheit should plead insane, according to the Evansville (Indiana) Courier and Press.

This puts the defense attorneys in a bind. The standard of practice in capital cases is to hire a team of experts to explore the defendant's life for evidence of mitigating circumstances that can then be presented to the jury. In fact, not to do so may violate a defendant's Constitutional right to effective representation, according to the 2003 case of Wiggins v. Smith.

Expert assistance is even more critical in cases like this one, in which the defendant's mental state may be at issue.

But the financial burden of the trial has been on the public's mind in these cash-strapped times. When a defendant is indigent, as most are, the state public defender pays half of the trial costs, and the other half comes directly from county coffers. According to the state analysis, the average death case in Indiana costs about $450,000; defense attorneys in this case estimate costs may run almost twice that average.

In June, the local paper even ran an opinion poll:

As a taxpayer, are you OK with seeking the death penalty for Jeffrey Weisheit if the estimated cost of approximately $800,000 is used in his defense?

Of the 461 people who voted, 78 percent said "YES." Two-thirds of these thought "there should be a cap on what public defenders can spend on defense.”

Public opinion is hard to ignore.

The prosecutor, meanwhile, says he is so concerned about defense expenses in death penalty cases that he has formed a special prosecutorial committee to study the issue. With such deep concern, it is interesting that he decided to seek the death penalty in the first place. After all, most such efforts are a waste of money. They add years to the process and do not ultimately result in an execution. Between 1990 and 2000, according to the Indiana study, only about one out of six capital prosecutions resulted in a death sentence, and only four of those has led to an actual execution. Indiana currently has 15 prisoners on death row, and six other capital cases pending.

Levco may care about the cost, but I'll bet he cares even more about winning. And he has found an innovative way to improve his odds.

It will be like shooting ducks in a barrel.