Balancing the Costs

As an attorney who has defended people accused of capital offenses, I was disturbed to read the grossly inaccurate statement that the cost of defending a person facing the death penalty “is one of the rare situations where the defense has far more assets to deal with and can spend much more money than the prosecution can.” (“Judges Pulling In Reins on Defense Costs in Death Penalty Cases,” Nov. 20.)

There exists a fundamental economic imbalance between the prosecution and the defense in criminal cases. This imbalance is particularly aggravated in death penalty litigation.

In a typical capital case, the district attorney has available the resources of the San Diego Police Department, the San Diego County Sheriff’s Department, their respective crime laboratories with modern and costly equipment, an internal investigation bureau, the psychiatrists, psychologists, pathologists, serologists and a barrage of other experts and consultants. Frequently the FBI is involved as an adjunct to other investigative work.

The district attorney has on staff as salaried employees a psychologist (who also assists trial attorneys in jury selection) and a full-time criminalist. The California Department of Justice and the California attorney general frequently provide additional assistance.

The prosecution team is composed of a staff of experienced trial attorneys. The most talented prosecutors are assigned to capital cases. Salaried appellate attorneys assist the trial lawyer in case preparation. In combination with this team is a support staff providing clerical and other professional assistance.

It does not require an accountant to understand that the cost of prosecution alone frequently runs into the hundreds of thousands or millions of dollars. Most of the costs are covered by the publicly funded, multimillion-dollar budgets of the district attorney, sheriff and police.

Capital defendants must face this formidable, professional and well-financed execution team. Thus, defendants require, at minimum, reasonably competent investigative and forensic assistance to do everything our system of criminal justice allows. Johnny Massingale (the young Kentucky man who was erroneously accused of a double homicide in San Diego) is only the most recent example of a situation where an innocent man could have been executed in the name of “justice.”

The process of state-sponsored killing is costly. The prosecution is provided at public expense. An accused is entitled to reasonable assistance to defend his life.

The public, through our Legislature, has rejected the idea of lynching in favor of providing due process. Due process means fair process. It costs society a lot of money to kill in the name of justice. It is also a fact that the economically indigent defendants can never match the resources of the state.

STEVEN E. FELDMAN

San Diego