Wednesday, August 17, 2011

A capital question

Excellent, a question from a reader:

DAC, what protocols does your office use in deciding when to seek a death sentence?

Only certain murders qualify as capital cases (more than one victim, for example). Whether or not to seek the death penalty is, of course, a huge deal and something we take very, very seriously here. Here's how it works:

The prosecutor is assigned the case, a capital murder. He meets with the detective, the victim's family, and reviews the file. He then puts together a presentation for a committee. This lays out the facts of the crime, the strength of the evidence, the criminal history of the defendant, any mitigating factors, and the wishes of the family.

The committee then discusses the case, using past capital murders as reference points, of course. That committee, by the way, is made up of senior prosecutors, division chiefs, that sort of thing. These are all people with decades of experience in this field, as you might imagine. Each person then gives his or her opinion. The elected DA listens carefully to each opinion, usually asks some hard questions of the ADA handling the case, and then she ultimately makes the decision.

I hope that answers your question, thanks for asking.


  1. I've heard that it is more costly to try a death penalty case and that that is something that the prosecution has to take into account as well--is there any truth to that at all?

  2. Lisa: I can't be sure. I'm not sure it's very much more in the prosecution phase, we'll probably present the same evidence. I think what's more costly is the appeals process and the incarceration costs, but I may be wrong. As for whether the elected DA considers cost, I doubt it just because it'll be a constant for each case, pretty much. But I haven't asked her, so I'm kinda guessing. :)

  3. Thanks for your thoughts, DAC. As to Lisa's cost point, I don't know the data for Texas. However, here in California, Judge Arthur Alarcon of the Ninth Circuit published a recent article in Loyola of Los Angeles Law Review that stated that our capital trials cost, on average, $1 million more than our non-capital trials. He attributed the significant difference to several factors: there are two attorneys per side in California capital trials, multiple investigators, multiple penalty phase experts, a lengthier jury selection process, the fact of the additional penalty phase, and a lengthier guilt phase. Do you have two attorneys/side in Texas? Even assuming you don't, and that your trials use fewer investigators and experts than we do, I assume you'd still face a trial-based cost differential due to the additional penalty phase and the jury death qualification process (and if you use as many attorneys, investigators, and experts as we do, it seems quite likely you'd face similar cost differentials!)

    Your post also raises two additional questions for me:

    - How much weight is given to the family's wishes? The other factors that you list relate objectively to the nature of the crime and the defendant. However, weighting victims' families wishes seems to create a danger that two otherwise-identically situated defendants could face life-and-death disparities in the penalty sought.

    - My other question for you is straightforwardly objective: does your office consider past capital murder reference points only in Travis County, or state-wide? I suspect the former, but just wanted to check.

    Thanks again for your response!

  4. Anon: the trial differences, yes. The defense will have two lawyers where they usually only have one (when appointed). The State always has two, no matter the case. Jury selection takes longer but I don't see it as all that much more expensive, other than paying for defense counsel's time. We don't sequester jurors and the ADAs would be working anyway.

    As to your questions: I simply wouldn't know how to quantify the weighing of a family's wishes. And I haven't been involved in enough cases to know the effect on particular cases. In reality, you will never, ever have two cases that are identical so I'd posit that your question is inherently unanswerable. How's that for evasion?! :)

    Second question: maybe I'm dumb, but I don't know what you mean by "capital murder reference points." Sounds like professor speak to me, which is usually way over my head. :)

  5. are you actually seeking the death penalty in your upcoming capital case?

  6. Nope, we're not. Any trial seems like it won't happen this year, probably early next year if I had to guess.


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