State fund helps pay for death penalty cases

By Mary Schenk

Champaign News-Gazette

Aug 12, 2007

The cost to prosecute and defend Maurice LaGrone and Amanda Hamm for the 2003 drownings in Clinton Lake of Hamm's three children came to about $1.75 million.

Of that amount, DeWitt County citizens paid just under $321,000. State taxpayers paid the other $1.43 million through the Illinois Capital Litigation Fund, money available to help pay for death penalty cases.

"It costs a lot of money," 6th Circuit Chief Judge John Shonkwiler said of the death penalty.

Although then-Gov. George Ryan declared a moratorium on executions in 2000 that remains in effect, prosecutors still may seek the death penalty.

As part of major death penalty reform enacted near the beginning of this decade, the Capital Litigation Fund was created to equalize the vast resources of the state and the mostly indigent defendants for whom the state was seeking the ultimate penalty. The money has been available since January 2000. Douglas County will use the fund in the case of a slain sheriff's deputy.

"From the defense perspective, I don't know too many people who actually could afford, on their own, someone to represent them. I think it would be almost an impossibility," said DeWitt County Judge Stephen Peters, who presided over the cases of LaGrone and Hamm and is presiding over another death-penalty case in his county.

When a jury declined to find LaGrone eligible for the death penalty, the state dropped its request that Hamm receive it.

"The state stops paying as of that day," said Shonkwiler, and the costs revert to the home county.

LaGrone is serving a life sentence for murder; Hamm is doing 10 years after being convicted of child endangerment.

"If we had had to pick up the millions, oh my God," said Dee Dee Rentmeister, administrative assistant to the DeWitt County Board. "We would have had to borrow money someplace."

As it turned out, the $320,967 that DeWitt County had to bear fell in two fiscal years, which "helped a little bit," Rentmeister said.

"We took it out of our contingency fund. We thought we were going to have to hit the building depreciation fund (but didn't)."

The Capital Litigation Fund has $4.5 million available to the 101 counties besides Cook, which has separate resources. Of that, $3 million is earmarked for the expenses of appointed counsel; $1 million for state's attorneys; and $500,000 for public defenders.

Shonkwiler said defense lawyers are expected to submit a budget to the trial judge saying what they think their expenses will be for experts, testing and the like. Unlike all other aspects of criminal cases, that information doesn't have to be shared with the prosecution.

"They specifically allowed that because if the state was there, the defense would be disclosing defense strategy," Shonkwiler said.

The judge hearing the trial and the county's presiding judge approve defense claims.

The prosecution, which typically does not have extraordinary expenses because the resources of the state are at its disposal, has its claims approved by the attorney general or the state appellate prosecutor's office. Either of those two state agencies typically assist prosecutors in smaller counties.

In Douglas County, where two men are accused of murdering sheriff's Deputy Tommy Martin this summer, State's Attorney Kevin Nolan has asked the state appellate prosecutor to help him win death sentences for those men. Nolan has only two other assistants to handle everything in his office from traffic tickets to criminal cases to civil work for the county board.

Counties pay a subscription fee based on population to use the state appellate prosecutor.

Don Hays, senior staff counsel for the state appellate prosecutor, said his office and the attorney general report annually to the Illinois Legislature what they spend on death-penalty cases, to help the General Assembly determine how much to put in the fund.

"You cannot guesstimate exactly how many death-penalty appropriate homicides you're going to have and which counties need our assistance. The best thing you can do is prognosticate from what happened in the past and add an appropriate cushion," he said. "Theoretically, if prior to the end of the fiscal year, the funds in that account are expended, there is authority to get additional funding through additional legislation."

Only once, in fiscal year 2002, did the money run out, said Scott Burnham, spokesman for state Treasurer Alexi Giannoulias, whose office administers the fund. In its first four years, the fund had $3.35 million. That was increased to $4.5 million in fiscal 2004, he said.

Defense counsel is paid $145.39 an hour, a figure that veteran Decatur defense attorney Jeff Justice says is a "substantial discount" from his regular rate.

Justice, who represented LaGrone and who was recently appointed to defend William Thompson for Mr. Martin's murder, said he has no beefs with how the system works.

He said from the time he sends the judge his bills to the time he and his experts get paid is usually four to six weeks.

Peters requires a budget of defense counsel and asks them to submit claims at least every two or three months. He wants a detailed synopsis regarding how they're spending their time: interviewing witnesses, researching for motions, taking depositions. He also expects a thorough explanation from defense experts as to what they're doing.

"Yes, you do blink at some of them," he said of the bills for experts. "But some of them are unique, and when you have a unique case, it requires experts with unique expertise.

"You have to be very cautious in limiting some requests. If you say no and it's defense-related, there can well be problems in prohibiting an individual from developing his defense. I have not found any attorney who has retained some expert that applied a defense that was off the wall."

Peters said the only expense he can recall denying was from an expert whose flight out of Chicago was delayed to California – and who billed thee fund for room service.

"If they want to eat, they should have sufficient motivation to get up out of their room and go get a meal," he said.