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A study conducted in 1985 by a UC Davis law student found that jury selection in death penalty trials takes 5.3 times longer than other murder cases. Because every juror must indicate their willingness to impose the death penalty, it's not unusual for the process of jury selection to take two months. Moreover, once the trial has begun, the defendant essentially faces two distinct trials. In the first phase, a jury decides whether the defendant is guilty. Then, in the "penalty phase," it decides whether he or she should die. For this reason, the same study concluded, death penalty trials take an average of 3.5 times longer than other murder trials. This added time means more money spent paying for the court's operation, and more money spent paying the sheriffs who provide security.
The costs of prosecuting and defending a defendant also rise during a death penalty trial. The American Bar Association has stipulated that adequate defense in a murder trial requires a team of four — two lawyers, one investigator, and one "mitigation specialist" who finds reasons for why, during the penalty phase, the jury should vote against death. Because defendants are nearly always unable to pay for their defense, these costs are born by the county. Prosecutors must refute each of these claims, and they expend added time ensuring that they can do so. Finally, death penalty trials tend to involve more expert witnesses. For example, a recent trend of using early head trauma as a mitigating circumstance — demonstrating that the defendant had impaired impulse control — has made the cost of two head trauma experts — one for each side — an added expense in some death penalty trials.
The exact cost is notoriously difficult to pin down because none of the agencies involved track expenses specifically related to seeking death. However, due to a California law that allows counties to apply for reimbursement for the cost of prosecuting homicide trials, some public data can provide a window onto the process.
Public records requests made in 2006 provided the ACLU with data from 22 homicide trials in California spanning the fiscal years 1996-1997 through 2005-2006. Minsker and two cohorts combed through the data, discarding twelve cases in which they deemed the record-keeping so shoddy as to be worthless, and keeping ten — eight death penalty cases and two non-death penalty cases. Minsker's team subtracted the cost of the least expensive death penalty trial in the data set — the $1.8 million trial of Arturo Juarez Suarez in Placer County — from the more expensive of the two non-death trials — the $661,000 trial of Michael Franklin in Plumas County. So the smallest price difference provided their figure: $1.1 million, and the average price difference was even greater: $3.13 million for trials where death was sought versus $557,000 where it wasn't. Although the data upon which this study was based is clearly small and possibly unrepresentative — especially given the inclusion of the notoriously expensive Charles Ng trial, which cost at least $10.9 million, and probably more — Minsker said the ten cases selected offer the best accounting available. Only more thorough accounting by every county can improve the accuracy of the numbers.
Suffice it to say, these numbers are contested. "Your literature isn't accurate," Ventura District Attorney Mike Frawley told Minsker during a hearing held by the California Commission for the Fair Administration of Justice in 2008. He was referring to her study, "The Hidden Death Tax," published in 2008, from which the $1.1 million figure originates.
When asked last week to expand upon his criticism, Frawley said, "It's hogwash. They're making things up. Prosecutors, defense attorneys, judges, they're all on salary — how can a death penalty trial cost more?"
Minsker, when presented that question, responded, "Time is money. When someone on salary spends their time working on one project, one of two things happens: Other work doesn't get done, or other people must be hired to do the work."
"There is no internal personnel cost that is greater for a capital case than for a murder with special circumstance," O'Malley said. "The case takes the amount of time it takes. I tried a case last year and it took me three months. There are capital cases that have taken the same amount of time."
But the records obtained by the ACLU suggest that prosecution often costs hundreds of thousands of dollars more in death penalty trials. In the trial of Scott Peterson, one of the eight cases among the ACLU's data set, for example, records show that the prosecution logged more than 20,000 hours — so much time that the county told the state it needed funds to hire more prosecutors to cover work that wasn't being finished and that it had reduced focus on consumer fraud cases.
Similar results have been found in other states studying the added cost of seeking death. A 2003 performance audit sponsored by the Kansas Legislature found that death penalty trials cost 70 percent more on average. And a report by the Tennessee State Comptroller found a cost increase of 45 percent for seeking death.
"Every district attorney I have ever met has said that their office is short-staffed and that they need more people, especially these days," Minsker said. "If a DA's office can truly allocate thousands of hours of staff time to a death penalty case, without any impact on the workload of the office, then the office should lay people off and let the county use that money for more urgent needs."