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Monserrate Shirley, Mark Leonard, Bob Leonard, left to right. (Provided photos / Marion County Jail)
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Updated: Tuesday, 12 Feb 2013, 1:26 PM EST
Published : Monday, 11 Feb 2013, 2:59 PM EST
INDIANAPOLIS (WISH) - Prosecutors say the decision not to seek the death penalty against three suspects charged in last year’s south side explosion involved many factors. I-Team 8 took an in-depth look at the decision-making process.
Early Monday morning, Prosecutor Terry Curry filed formal requests to seek “life without the possibility of parole” against Mark Leonard, Monserrate Shirley, and Bob Leonard, Jr.
All three are accused of taking part in a plot to blow up Shirley’s house in order to collect insurance money . An explosion inside the home leveled much of the Richmond Hill subdivision, and led to the deaths of Jennifer and Dion Longworth.
Each now faces at least 45 murder and arson related felony charges.
For months, speculation grew surrounding whether Curry would seek the death penalty. While it did, I-Team 8 sought opinions from experts to help explain what went into the decision.
INDIANA’S OTHER LOTTERY
“In the last 10 years there are hundreds of Marion County cases where the death penalty could have been sought, and it was sought in very few of those cases,” said IUPUI McKinney School of Law Professor Joel Schuum. “I think most people agree that they should be the very worst people [on death row]. And, that's not the way it ends up being.”
Research by I-Team 8 instead showed the death penalty as an increasingly rare tool used by prosecutors across the state.
“There are now fewer than two death penalty cases filed in the entire state per year,” said Indiana Public Defender Council Assistant Executive Director Paula Sites, who has studied extensively on capital cases in Indiana. “Right now, there are just four cases pending.”
In Marion County, no death penalty case has gone to trial in more than a decade.
In 2007, Schuum chaired a study by the American Bar Association that found “only a few of Indiana’s murder cases result in a prosecutor seeking a death sentences, fewer still result in the imposition by a death sentence by a jury or judges, and only a handful over the past three decades have resulted in the execution of a defendant.”
“The rationalization that the proponents give is that: we need the death penalty for the worst of the worst. But, if you look at all the people who have been charged and the people who get the death penalty, no rational person can say--that's the worst of the worst,” said Indiana Public Defender Council Executive Director Larry Landis.
“It's Indiana's other lottery, because it’s hard to decide,” Schuum said. “You have all these horrible murder cases. Who is the worst person? If only one percent of these people are going to get the death penalty, what makes someone especially deserving of that?”
THE INTENT FACTOR
“This is clearly the most important decision we have to make here in the prosecutor's office, not only in this case, but in any case where circumstances justify consideration of capital punishment or life without parole,” Curry said. “But, at the end of the day, I think the conclusion we have to reach is: if we go through this process and we are to seek capital punishment, given all the circumstances in any given case, what's the likelihood that the jury would agree with that request?”
In Indiana, Schuum argues, the answer is increasingly hard to predict.
“Blowing up a neighborhood is a horrible thing. But, in terms of the intentionality of these defendants based on at least what's been in the media, it's not the kind of case where someone has held a gun to someone's head while they begged for their life and shot them repeatedly, or brutally murdered them like some of the death penalty cases you see.”
Both death penalty cases and life without parole cases must have “aggravating factors.” This case qualifies, Curry wrote in his filing Monday, because of allegations that the murders were committed “by the unlawful detonation of an explosive device, that there were multiple deaths and that John “Dion” Longworth died as a result of direct contact with the fire.”
“The prosecutor should make the decision based on the evidence, what the crime is, what they know about the defendant and that person's background,” Schuum said. “But, the jury recommends [the penalty]. Although it's called a recommendation, if the jury recommends that someone not get the death penalty, the judge can't impose that now. If the jury recommends they do, then the judge has to impose that.”
There are also stark cost differences between a death penalty case and a life in prison case.
“As soon as they file that notice that they're seeking death, that defendant is going to get two lawyers paid at taxpayer expense at over $100 per hour. They’re going to get unlimited experts. If there is a jury, it's going to have to be sequestered. There's going to be all sorts of added costs to that,” Schuum said.
A 2010 fiscal impact report by Indiana’s non-partisan Legislative Services Agency found the average cost of a death penalty trial involving one direct appeal in Indiana was around $450,000. Some previous cases have cost more than $1 million, Sites said.
By comparison, the study found the average trial and appeal cost of a life without the possibility of parole case to be $42,658.
“That’s 10 times higher,” Landis said. “That’s a significant increase.”
Add in the cost of lifetime incarceration, and taxpayers still pay, on average, five times more per death penalty case than per life in prison case, the study found.
“Another part of it is: even with a death sentence, they're going to spend [an average of]16 years in prison on death row. You have to add in that cost,” Landis said.
Those costs have crossed over to other county business as well, Landis said.
“It has much more impact on the county level--especially for the smaller ones. Some counties have even had to have a property tax increase because of it. That's a political decision,” Landis said.
“People are looking for value from their tax dollars. And, this isn't where you find it,” Sites said.
Curry says political pressure was not a factor in this, or any other charging decision.
“We reviewed the facts thoroughly. We reviewed the applicable law. We met with the parents of John and Jennifer Longworth, and had--as we always do--pretty spirited discussion to reach a decision,” he said.
But, others aren’t so sure.
“You have to say politics enters the decision making strategy,” Landis said. “Ultimately, capital punishment is a political decision, because it can only be abolished by the legislature.”
“Every four years they're going to have to seek re-election,” Schuum said. “There can be pressure. Some prosecutors are conscious of that. Some, maybe not.”
Many death penalty defendants never make it to death row. In many cases, it’s not their guilt that’s in question.
“Eighty percent of the cases that are filed result in something less than death, and generally by plea agreement or some other type of agreement,” Sites said.
Since taking office two years ago, Curry has only filed death penalty charges once. Thomas Hardy was convicted of killing Indianapolis Metropolitan Police Department officer David Moore in January 2011.
But, the case never made it to trial.
Hardy agreed to plead guilty in exchange for a sentence of life in prison without the possibility of parole.
“That came about because of the willingness of the defendant to enter into that plea, and correspondingly, the wishes of Officer Moore’s family,” Curry said.
“But, that went on for over a year with a lot of expense in preparing for that trial, where a discussion could have been had earlier on that there wouldn't have been a need to pursue the death penalty and then a year later have taken it off the table,” Schuum said.
Asked if the potential of a plea deal entered into his decision in the Leonard/Shirley case, Curry shook his head.
“I absolutely believe it's inappropriate to file a charge of seeking death penalty or to seek life without parole merely to leverage a plea,” he said.
“If they're not going to recommend death and that may be the outcome anyway, why do we go through this whole process of death penalty, when you can guarantee public safety and that the person will never walk the streets again?" Landis said.
But, Curry says the death penalty can be an effective tool for a prosecutor. In this case, it simply wasn’t the right one.
“If, in our judgment, it's very possible that the jury could never get to that conclusion [to recommend the death penalty], then clearly we don't want to put the family through that protracted process and incur that cost if we feel it's going to be a futile pursuit,” he said. “Everything we do is taken on a case by case basis. That’s what we’ll continue to do.”