Source: The Corydon Democrat

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Case allows chips to fall where they may

by Alan Stewart

January 28, 2014

In a poker tournament, there are decisive advantages to holding most of the chips, not the least of which is being able to put others in a position where they know, if they want to continue in a hand, they are going to have to play for their tournament lives. The players with fewer chips will often fold a marginal hand for nothing else than self-preservation.

In the criminal justice system, generally speaking, the prosecution is that chip leader and defendants are the short stacks.

The state often can wedge a plea agreement, assuring itself of getting a favorable sentence in exchange for a guilty plea, and not have to gamble on the outcome of a jury trial or a judge's sentencing. Defendants can get lesser sentences simply for folding their hands.

Recently, Harrison County Prosecutor J. Otto Schalk filed for the death penalty in the murder case against Austin Scott and Kevin (Drew) Schuler; both are accused of savagely murdering Gary Henderson and Aseneth (Senie) Arnold in the couple's Byrneville home last year.

Schalk gave the two men the option of taking a plea agreement, where they would face life in prison without the possibility of parole, or they could decline the plea deal and face the death penalty.

Scott and Schuler decided to gamble on hitting a miracle card and turned down the plea agreement; they are now playing for their actual lives.

Many questions come into play when it comes to the death penalty, but the two biggest are: Should a civilized society condone state-sanctioned killings, and does the end justify the means in terms of cost?

Regarding the death penalty itself, each individual person has to look in their heart and their own sets of beliefs as to whether the government should, or shouldn't, put people to death. It's a gray area that many people wrestle with anytime an execution makes national headlines.

A case in point is the execution in Ohio two weeks ago in which Dennis McGuire, who was convicted of murdering pregnant 22-year-old Joy Stewart in 1989, gasped and snorted for roughly 26 minutes after the state used a new, untested two-drug cocktail in his execution because European pharmaceutical companies last year stopped selling the three-drug mix used for injections on ethical grounds.

A normal execution takes about five minutes.

Some would say he should have suffered as much, if not worse, after killing a pregnant woman; others would say no one deserves a 26-minute execution.

The same muddy waters are stirred when it comes to cost.

The state Supreme Court controls the conduct of capital cases in Rule 24 of the Indiana Rules of Criminal Procedure, which requires two public defenders to represent defendants. Rule 24 also requires adequate funding be provided for the defense at trial and sentencing, including experts, investigative services and any other necessary services subject to the judge's approval. The defense must also depose witnesses and hire its own experts.

Several years ago in a death penalty case in Warrick County, defense attorney fees alone cost the county a half-million dollars.

In 2009, Parke County officials increased the county tax rate by 0.25 percent to pay for the prosecution of capital murder charges. When the case ended in the spring of that year with a guilty plea rather than a trial, the county had already spent a half-million dollars on the case.

Grant County officials transferred $500,000 from their county's road and street fund to help pay for the death-penalty case in 2004.

According to a report from the State of Indiana, a fiscal impact report prepared by the non-partisan Legislative Services Agency for the 2010 Indiana General Assembly found that the average cost of a death penalty trial and direct appeal was more than $450,000, compared to $42,658 for a life-without-parole case.

The cost of a death-penalty case pursued through execution was found to be five times the cost of a life-without-parole case and lifetime incarceration.

From 2000 to 2012, slightly more than one-in-five completed death-penalty cases in Indiana resulted in a death sentence. Yet, taxpayers are saddled with the extra costs of a death-penalty case even when it does not result in a death sentence or execution (it should be noted the state reimburses counties for half of the defense costs for death-penalty cases).

If the big drawback is cost, then why pursue the death penalty?

Prosecutors still need the death penalty in order to secure plea agreements to life without parole and save counties the cost of a life-without-parole trial. Just because Schuler and Scott turned down the agreement doesn't mean there couldn't be one somewhere down the road.

The death penalty is needed for the worst of the worst, of which it appears Scott and Schuler may be (this is America, and there is still the presumption of innocence for the two men).

The only chips Scott and Schuler have are the hope that their attorneys can come through in a trial to create enough doubt that they didn't commit the crimes; or that they would rather face the odds of lethal injection over the elimination of their appellate rights by entering into a plea agreement.

It's a heck of a gamble, and, ultimately, the two young men are going to decide whether to fold, or go all-in, possibly for their very lives.