Wednesday, March 04, 2009
Chicago Daily Law Bulletin
by Jerry Crimmins

The Cook County public defender's office has nearly exhausted its budget to defend people in death penalty cases, according to Public Defender Edwin A. Burnette.

Additional funds may not be available until the fall, according to the office.

''We are very close to zeroing out the Capital Litigation Trust Fund'' account, Burnette said Wednesday. ''Next week or in 10 days, we'll be zeroed out.''

''It's extremely low, about $200,000 left, and the state fiscal year ends on June 30 of this year,'' said Jeffrey M. Howard, chief of operations for the office.

As a temporary fix, Burnette said his office will ask Cook County judges to transfer money out of their own Capital Litigation Trust Fund account to the office so that it can continue to pay expert witnesses, mitigation specialists and investigators.

Cook County judges have access to their own grant each year from the state's Capital Litigation Trust Fund to pay for defense expenses in cases in which the judges appoint private counsel instead of the public defender.

Burnette said ''we have to try'' to find money to continue to defend the accused in death penalty cases ''in the interests of justice.''

The office intends to ask the state treasurer to give it a supplemental grant for the rest of the fiscal year, an unusual instance provided for in the trust fund legislation.

The public defender has never asked for a supplemental grant before, said Julie M. Harmon, so the outcome is uncertain.

If no more money can be found, Howard said the office will ask the experts it hires to wait for a long time to be paid.

''This makes experts reluctant to work for us,'' he said.

The office hires psychologists, psychiatrists, ballistics and fingerprint experts and DNA experts, Howard explained. It also hires ''mitigation specialists'' to investigate the accused's life and present mitigating factors to a jury in an effort to avoid the death penalty.

The office tries at least five capital cases each year and can try up to 12 or 15 in a year, Howard said.

The office usually has about 135 to 155 capital cases pending, according to Harmon, the office's capital case coordinator.

Scores of additional defendants in Cook County are eligible for the death penalty each year. State statutes allow the death penalty for 20 different reasons.

Howard said the rules of the Illinois Supreme Court require the office to take extra steps to defend someone from the death penalty, from the beginning of the case until prosecutors declare the state will not seek death.

The Capital Litigation Trust Fund was created in 2000 by the General Assembly to provide defense counsel and prosecutors access to sufficient resources to cover the costs of litigating capital cases.

Typically in early March, the public defender would have up to three times the amount of funds it currently has for death penalty matters, Howard said, but ''costs on cases are going up.''

Even worse, according to Harmon, when the office finally received its appropriation for this fiscal year last October, 60 percent of the appropriation had to be spent to pay bills that had already accumulated since the previous year's appropriation ran out.

The office received $1.75 million this year for capital cases. ''We were actually appropriated at $2.1 million,'' Howard added, but the governor vetoed the higher amount.

Cook County receives special appropriations from the Capital Litigation Trust Fund because it has the most death penalty cases. The state's attorney's office and the chief judge's office receive such grants as well. The status of funds for those other two agencies was not available Wednesday.

All the other counties in the state receive monies from the Capital Litigation Trust Fund as needed, and the state appellate defender's office receives an annual appropriation from the fund.

For counties outside of Cook, a spokesperson for Illinois State Treasurer Alexi Giannoulias said Wednesday, ''currently, we have $2.084 million left for outside appointed counsel and $455,336 left for public defenders.… We do not anticipate any shortfalls.''