If you lose, you get death

Prosecutor uses death penalty to leverage plea bargains

By Adam Kovac

Daily Herald Staff Writer

July 18, 2006

While most suburban prosecutors use the death penalty sparingly, even in
heinous slayings, Kane County States Attorney John Barsanti intends to
seek it whenever he can.

Barsanti says that puts the onus on judges and juries to decide who lives or dies. He also says the threat of lethal injection could prompt some to
plead guilty to stay off death row.

"Why go into a plea bargain without all the bullets in your gun?" Barsanti
said. "In a negotiating situation, you can say, 'You roll the dice on this one and lose, you get death.'"

After 1 1/2 years in office, Barsanti has sought the death penalty in 5 of
about 2-dozen murder cases more than his predecessor, Meg Gorecki, did in
4 years. And far more, percentage-wise, than many of his suburban
counterparts.

And he has done so in cases with scant physical evidence and mentally ill
defendants.

The strategy has put Barsanti in the crosshairs of death-penalty opponents, who believed Kane County pursued death too often even before he was elected.

"We were surprised at how it shot up after he took over," said Jane
Bohman, executive director of the Illinois Coalition to Abolish the Death
Penalty. She says the countys resources could be better spent on drug and
gang offenses.

Kane County has not sent anyone to death row since 2001. But Barsanti says
he is not likely to stop trying.

Because state's attorneys are elected, he says, he is forced to be a fair but tough prosecutor in the eyes of voters.

Barsanti also says there are flaws with Illinois' death penalty system. He
has suggested a lone states attorney should not make the call and has
agreed there are too many factors that make someone eligible.

Still, he says he must work within the system that exists.

"Somebody has to make a call. It's tough for an elected states attorney,"
Barsanti said. "You have to have a conversation with the victims families
on why you should go for the ultimate punishment."

Barsanti's death penalty philosophy also appears to clash with standards
the Illinois Supreme Court drew up in 2001 as part of reforms to the
states capital punishment system.

"The duty of a public prosecutor or other government lawyer is to seek justice, not merely to convict," the court wrote.

But Barsanti's policy is part of a common practice among state's attorneys
and it's legal even if it skirts an ethical pitfall, said Steven Lubet, a law professor at Northwestern University.

Although prosecutors are supposed to zealously prosecute criminals, it's hard to determine when using the death penalty to leverage a plea becomes
improper, Lubet said.

"There is a point where it could be done in good faith and a point where
it's unethical," he said.

After a person is arraigned for murder, prosecutors have 120 days to say
whether they will seek the death penalty, but the deadline can be extended.

The decision is based on about 2 dozen generally accepted eligibility
factors, such as when a murder is committed during a robbery or another
felony, when the crime is especially cruel or the victim is 2 or younger.

While the wording of the law makes nearly all murder cases eligible for
the death penalty, most defendants end up fighting a trip to a prison cell
rather than the death chamber.

Making the call

In 2000, then-Gov. George Ryan put a moratorium on executions after 13
death\ row inmates were exonerated.

Luther Casteel was the last person sentenced to death in Kane County,
convicted in 2001 a few months after he opened fire in JB's Pub in Elgin,
killing two and wounding 15.

His sentence, along with those of the other 166 death row inmates, was
commuted to life.

In part because of how closely death penalty cases are now scrutinized,
some suburban prosecutors say capital punishment is an option they wield
with great caution.

"As chief law enforcement officers, we take this very seriously," McHenry
County States Attorney Lou Bianchi said. "Before we would ask a jury to
take the life of anybody, we will take a serious look at it."

"Its the most difficult decision I have to make," said Michael Waller, Lake County's state's attorney.

"As far as seeking death in every case, we don't," said John Gorman, a
spokesman for Cook County State's Attorney Richard Devine. "Not every case that's death-eligible is suitable for the death penalty."

Ryan's moratorium is still in place, but convicts still can be sent to death row to await execution when the suspension is lifted. Gov. Rod Blagojevich has opted to continue the moratorium without a time limit, but a decision on whether to keep it in place could be made in the next gubernatorial term. 8 men await execution in Illinois.

Murder by numbers

A Daily Herald analysis examined death penalty cases since 2004 in Kane,
McHenry, Lake, DuPage and Northwest suburban Cook counties.

In terms of the number of death penalty cases, Kane County stands out, the
analysis shows.

Prosecutors in Northwest suburban Cook County sought the death penalty
once in 2005 and that turned into a plea deal. There are 3 ongoing death
penalty cases this year.

DuPage County has six. It sought the death penalty twice in 2005 and once in 2006, and is expected to announce more cases this year.

McHenry County hasnt had a death penalty case since 1993, but Bianchi says that's no indication he won't ever seek it.

Until last year, Lake County hadn't had a death penalty case since 1998,
although there were more than 2 dozen murder cases in 2004 and 2005.

Kane County has typically reserved the death penalty for high-profile
cases bolstered by solid evidence and witnesses.

But it didnt take long for Barsanti to stray from tradition.

A year ago, seven months after taking office, Barsanti sought the death penalty for Robert J. Guyton Jr. in the drug-related kidnapping and
shooting death of David Steeves in Elgin.

Since then, he has sought the death penalty four more times and is
considering it in another murder.

Guyton was convicted of murder last month, but he will go to prison
instead because a judge said there is no proof he fired the fatal shot.

And in the case of Michael Calabrese, charged in August with the shooting
death of Edmund Edwards during a dice game in Carpentersville, Barsanti is
considering whether to withdraw the death penalty on Friday.

Attorneys in the case say Calabrese could have a history of mental illness.

Bohman's anti-death penalty group blasted Barsanti for seeking death for
Calabrese.

The organization's 2006 annual report on capital punishment in Illinois
even pointed out Barsantis explanation in a Daily Herald news story on the
case, in which he said: "I think it's important to seek the death penalty
whenever possible."

Clearing the books

While Barsanti has demonstrated a willingness to use the death penalty as a tool, he also has shown he'll allow some cases to end in a prison term.

Edward Tenney sat on death row in the 1993 murder of Virginia Johannessen of Aurora until he won a new trial in 2002. In 2005, Barsanti took the death penalty off the table because of new standards that make it harder to convict in a death penalty case and because he wanted to move to trial faster.

Joseph Foreman faced the death penalty in the 2004 kidnapping and beating
death of his ex-mother-in-law, Linda Duchaine, in rural Kane County. He
pleaded guilty in exchange for life in prison after it was learned he had
cancer.

Vivian Mitchell also faced the death penalty in the 2003 stabbing death of
Lynn Weis in West Dundee. She was found guilty but mentally ill and in
2005 was sentenced to life.

In May, Barsanti's top lieutenants signed off on a deal that netted a
48-year prison stint rather than a death sentence for Cayce Williams a
month before his trial. Williams had sat in the county jail for 9 years
since the 1997 rape and murder of his girlfriends daughter, 20-month-old
Quortney Kley, in Elgin.

David Kliment, the countys public defender, has been the defense attorney
for Williams, Casteel, Mitchell, Foreman and Guyton. He also represents
Curtis Means and Andres Velazquez, both of whom are facing the death
penalty.

Kliment has questioned some of Kane Countys recent death penalty
decisions, and whether manpower and money could have been better spent.

"It's got to be reserved for the worst of the worst," Kliment said. "And I
don't think it's being used that way."

Other costs involved

Murder, arson and other offenses were leveled against Vivian Mitchell
before Barsanti was elected, and he allowed his assistants to continue
their push to send the former Indiana drifter to death row.

Even though authorities said the grisly nature of the crime warranted the
death penalty Weis was stabbed more than 80 times and left to die in her
burning apartment it would be a tough sell.

Mitchell had a history of paranoid delusions and, after she was convicted
in 2004, a death sentence would have been scrutinized on appeal.

Even after Mitchell was sentenced, taxpayers still were on the hook for
the $20,264 for expert witnesses and other costs to prosecute her,
according to the states Capital Litigation Trust Fund, which covers
special costs in death penalty cases and is funded by taxpayers statewide.

Kliment earlier this year said he would also bill the fund for $31,836 to
pay for experts he used in Mitchells defense.

If prosecutors before and after Barsanti was in charge had opted out of a
longshot death sentence, Mitchells case would have cost less and taken
less time.

"In Vivian Mitchells case, I don't think anybody believed she had a
realistic chance of getting the death penalty," Kliment said. "Once they
found her guilty but mentally ill, that should have stopped the process
right there."

While it was then-State's Attorney Meg Gorecki who initially sought the
death penalty for Mitchell, Barsanti says he continued in that vein
because it's what Weis' family wanted.

From 2003 to early 2006, Kane County billed the fund for $199,483, leading
its suburban neighbors for the same period.

Most of the bill was tallied before Barsanti was elected. In 2003,
taxpayers paid about $148,982 for seven of Kane Countys death penalty
cases, including some that had been on the books since 1995.

But in the same three-year period, the total cost for DuPage County's
cases was about $98,753, and Lake County's was about $39,023. The fund was
not billed for any cases in McHenry County. Special costs in Cook County
death penalty cases are managed by a separate account.

Every case different

DuPage County State's Attorney Joe Birkett took part in a partial
retooling of Illinois' capital punishment system and says a death penalty
decision should be based on the details of the offense and if there is
enough evidence to shield the case on appeal.

However, Birkett also defends a prosecutors option to seek the ultimate
punishment.

"Most of the people who the death penalty has been sought against are
vicious monsters," he said. "They have no soul."

Barsanti says he will continue to seek death sentences as long as the
crimes meet the eligibility factors. Its the best way, he says, to be
consistent and ensure all of Kane Countys murder cases not just the
horrific ones receive justice.

"The problem is that no situation is the same," Barsanti said. "Now, the
final decision lies with the judiciary because thats how the system is
supposed to work."

Ante up

What taxpayers spent from 2003 to 2006 for special expenses in suburban
death penalty cases.

County 2003 -- 2004 -- 2005 -- 2006 -- Total

Kane $148,982 -- $0 -- $49,993 -- $508 -- $199,483

DuPage $35,954 -- $33,913 -- $26,469 -- $2,417 -- $98,753

Lake $1,053 -- $0 -- $22,228 -- $15,742 -- $39,023

McHenry $0 -- $0 -- $0 -- $0 -- $0

Note: Special costs for death penalty cases in suburban Cook County are
managed by a separate fund.

(Source: Illinois treasurer's office)

(source: The Daily Herald)