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Cook public defender wants death penalty removed in 60 cases
Department cites low funding as reason

Thursday, June 04, 2009
Daily Herald
by Rob Olmstead and Barbara Vitello

The Cook County Public Defender is filing motions to remove the death penalty as an option in about 60 murder cases because the office is out of money to pay expert witnesses in those cases, it announced Wednesday.

Among the suburban cases included in the filings are those involving Patrick Taylor, charged with first-degree murder in the 2006 slaying of Marquis Lovings at Lovings' Rolling Meadows apartment; Des Plaines resident Mila Petrov, charged along with Carlos Beltran with killing their daughter in 2007; and D'Andre Howard, charged with first-degree murder in the April deaths of three members of the Engelhardt family in their Hoffman Estates home.

"In order to give (death penalty defendants adequate) representation, we need to have adequate funding," said Public Defender Abishi Cunningham.

The earliest additional funds would be available is October 2009. That might not help much, since the motion indicates that 75 percent of the funds allocated during the next fiscal cycle will be paid toward past expenditures.

Including appeals, a capital defense for an indigent client could cost as much as $2 million. In the case of a defendant like James Degorski, accused of killing seven workers at a Brown's Chicken & Pasta Restaurant in Palatine in 1993, the cost is much higher. Arrested in 2002, Degorski is scheduled to go on trial in August after years of delays. His is not among the cases in which public defenders are seeking to remove the death penalty, Cunningham said. However, it is still being evaluated for such a motion, Cunningham said.

The Cook County State's Attorney's Office has opposed the motions in court as they have arisen. It contends it is up to prosecutors, and prosecutors only, to decide when to seek the death penalty as long as certain statutory requirements are met.

Illinois gives Cook County public defenders $1.75 million a year to pay for expert witnesses in an estimated 122 death cases, said Cunningham. The money goes into the Capital Litigation Trust Fund which pays for forensic experts, psychological experts and other key witnesses needed to defend capital cases. Legislators established the fund nine years ago after the courts overturned the wrongful convictions of 13 individuals sentenced to death row.

Sally Daly, a spokeswoman for State's Attorney Anita Alvarez, could not immediately say how much prosecutors receive for their capital litigation fund, but noted it's up to the public defender's office to live within its budget, just as the state's attorney must.

The legislature had approved increasing the public defender's fund to $2.25 million for 2009, but former Gov. Rod Blagojevich, in a line-item veto, reduced it back down to the previous year's $1.75 million, Abishi said. Abishi and Julie Harmon, Cook County's capital case coordinator, argue that amount is insufficient.

So the office is asking judges to remove the death penalty as an option, or allow the public defenders to withdraw. In that event, the courts could appoint private attorneys to the 60 cases, which would mean the judge in the case would order the state to pay both attorneys fees and the costs for expert witnesses.

"Judges are loathe to do that because public defenders have been on some of these cases for years," said Assistant Public Defender Julie Koehler, part of the team defending Petrov and Howard.

Switching attorneys would erode the trust, confidence and rapport the public defenders have developed with clients over the years, seriously impacting the defense, Koehler said.

Daly noted that capital litigation funds are supplemental funds, and there is nothing to prevent the public defender's office from dipping into its general fund to pay for witnesses in these cases. The immediate past public defender, Edward Burnett, already sued Cook County Board President Todd Stroger, arguing his office's budget had been slashed to the point where he could no longer effectively carry out his statutory duties.

There is a solution, Koehler said.

"Ideally the death penalty would no longer be an option," said Koehler. "It would save the state millions of dollars."

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