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Public defenders take money woes to court

Friday, April 10, 2009
Chicago Daily Law Bulletin
by Pat Milhizer

Two years ago, the Cook County public defender's office told a panel reviewing death penalty reforms that the office was in danger of running out of state funds to pay defense experts in capital cases.

Now that fund is almost broke.

But this time, the public defender's office isn't taking the matter to a state committee. Instead, the office has put the issue before a judge in what is believed to be a matter of first impression.

Assistant Public Defenders Marijane F. Placek and Daniel J. Walsh have filed a motion before Associate Judge Thomas V. Gainer Jr., to be considered later this month, asking that the state be barred from seeking the death penalty in a murder case because there is not enough money to pay defense experts.

In the case, Brian Gilbert is charged with fatally stabbing his girlfriend's two sons, who were 12 and 14 years old.

In cases of this sort, the public defender's office uses the the capital litigation trust fund to pay mitigation experts, psychologists, psychiatrists, DNA experts, court reporters at depositions, interpreters and others.

''We're worried about Brian Gilbert because he's our client,'' Placek said. ''The money that it takes to defend Brian Gilbert from the death penalty is going to be enormous, and right now we are broke.''

Not only is the fund too small to handle existing cases, but expert witnesses from previous cases are still waiting to be paid.

''People are like, 'Where's my money? We're not taking any more cases,' '' said Julie M. Harmon, capital case coordinator for the public defender.

Last year, the Illinois House and Senate approved $2.25 million for Cook County, Harmon said. But then-Gov. Rod R. Blagojevich reduced the amount to the previous year's allotment of $1.75 million, Harmon said.

Part of the reason that the money quickly ran out is because 60 percent of the fund was spent to cover outstanding bills from fiscal year 2008.

''It's a vicious circle,'' Harmon said. ''I don't see anyway out of it. We keep getting deeper in the hole.''

The office has about 120 cases pending, which is about 20 fewer than usual, Harmon said.

In late February, the office submitted a request to the state treasurer for an additional $400,000, but that has not been acted on yet, Harmon said. The fund isn't totally empty, but there currently isn't enough money to pay outstanding bills.

''Now it's just trying to match smaller bills with the small amount left and get to ground zero,'' Harmon said.

Sally Daly, a spokeswoman for State's Attorney Anita M. Alvarez, said that the office will oppose Placek's motion.

Unlike the state's other 101 counties, Cook County receives its capital money as a one-time grant. Other counties submit their bills throughout the year as needed.

That creates a built-in delay to get the money to Cook County after the General Assembly approves it at budget time. The statute says that all of the previous fiscal year's bills must be paid before newly approved money can be transferred from the state's general fund to the capital fund.

So Cook County doesn't get its money until after the collar and downstate counties are paid for bills submitted in the previous fiscal years, which end on June 30. Last year, the public defender's office didn't receive its grant until October, Harmon said.

Thomas P. Sullivan of Jenner & Block LLP chairs the Capital Punishment Reform Study Committee, which first heard about the funding issue two years ago.

Sullivan said he doesn't speak for the commission, but he said he has an easy way to solve the problem.

''Capital punishment is really a relic left over from the past,'' Sullivan said. ''And it's been abolished in most countries throughout the world. It serves no useful purpose whatsoever.

''It takes so long to process these cases,'' Sullivan said. ''So I just think they ought to get rid of [capital punishment] because it's a dumb idea. And that would eliminate the need for a capital litigation trust fund.''

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