I am speaking at the upcoming Death Penalty conference in San Antonio on "The Decision to Seek Death." In preparing for this speech and the paper I am writing on the subject, I would be very grateful for any comments prosecutors have on this most important of decisions. I invite any helpful comments on what matters to prosecutors in making this decision, including factors that tend to influence you to seek the death penalty, factors that tend to influence you not to seek death, and factors that should not be considered at all. This is, of course a controversial and somewhat volatile issue, so please feel free to email your responses to me at sphelps@co.brazos.tx if you prefer that to a public post, not that we have anything to hide. Thanks.

Shane: Wait a week or so and read Time Magazine. They have been calling all around Texas asking the same question of prosecutors...

I left the .us part of my email address out. My complete address is sphelps@co.brazos.tx.us. Thanks to Ed Spillane for pointing that out. For more information see my first post in this thread and let me know how you approach these decisions. Rob, thanks for the heads up on the Time article. I'll be looking for it.

Okay, so let me see if I have this straight. 27 posts on state jail felony drug legislation, nine posts on switchblades, 18 posts on bailiffs carrying weapons, and 18 on office mottos. And no one has any thoughts on the decision to seek death? I need some input here, people. Thanks.

Perhaps if the title to your thread had a little more zing to it? My experience is that you can pick up a lot more attention if you include the word "naked" in any sentence.

I know you'd prefer the input of somebody much more learned in our business -- but it seems to me like the decision to seek death goes back to the one who decides to create a victim out of another human being. That's where the decision is born...the prosecutor simply becomes the facilitator for the resulting consequences of the other's wicked choice(s).

[This message was edited by A.P. Merillat on 05-02-03 at .]

Shane, I recently spoke out on this subject in an AP article regarding whether a life without parole option should be added to Texas law. I am a district attorney with a total staff of 3.5 (one part-time assistant district attorney). During the past 10 years in office, I have prosecuted a dozen or more capital murder cases. I will only make a decision to seek death after compiling every bit of information about the defendant's past that I can possibly lay hands on. Once done, I try to factor in the facts of my case together with the defendant's past to try and determine whether the defendant is going to continue to be dangerous. I have not hesitated to seek death when I believe it is appropriate even though I know I am going to face questions and criticism that isn't a consideration in larger jurisdictions. Early and often in every death penalty case I have tried I am asked by my local press how much the case is going to cost and what impact it will have on the county budget. During my last trial, the commissioners court talked about cutting county jobs and blamed it on the cost of the trial. I have heard other small jurisdiction prosecutors say that they simply could not seek death because it would break the county financially. I would like to see you discuss this issue during your session. A decision to seek death in my office means I am committing to spend up to six weeks on one case and close my office to everything else that comes in during that period. This decision is a much bigger deal to me than it is in a larger jurisdiction.

Thanks, Tim. You raise a very difficult issue which I would like to address in my speech and paper. When I was with the AG's office traveling around Texas prosecuting cases, I was struck with the huge gap between what rural counties can do and urban counties can do. I have seen counties raise taxes to fund a capital prosecution and I have seen prosecutors tell families of victims that the county simply could not afford to seek a death sentence. Obviously, in the larger counties (Houston, for example) this is not a factor at all. This situation creates the potential for uneven application of the death penalty from county to county. Ideally, I believe that the issue of cost should not factor into the decision to seek death, but the reality may make that idealism impractical. I welcome other input on this issue. Thanks again, Tim.

A.P., thanks for your input. I value your opinion highly and you make an excellent point. It really is the conduct of the defendant, past and present, that is at the heart of the decision to seek death. The difficulty for prosecutors is insuring that they have some consistent framework for approaching the issue and making tough relative judgments from one defendant to the next. Sometimes the conduct of the defendant makes the call a no-brainer. Sometimes, the call is not as easy (Andrea Yates, for example).

I know that Jaime Esparza has given talks on that subject before; I think to the state bar....

One of our local lawyers here in Abilene uses the differences between the rural death penalty prosecutions vs. the urban prosecutions as his reason for opposing the death penalty. Arguing, as the above message said, the disparity of rural vs. urban because of cost. It is just another weapon against the death penalty as this attorney is dead set against the death penalty(pun intended), he just uses the argument to further the abolitionist agenda.

It's not a new argument. A motion on this subject is being filed in every death penalty case. I am not suggesting that this makes the death penalty unconstitutional or unfair. If it did, then disparities in resources from rural to urban locations would be a problem in every case, not just death penalty cases. It is, however, something that should be acknowledged in any thoughtful discussion of charging decisions in death penalty cases.

Mr. Phelps, Mr Cole is correct. A Motion will be filed in every death case asking the Court to have a hearing requiring the State to set out it's reason for seeking the death penalty, under some theory of constitutional inequity - it just happened here; the judge denied the motion on its face.
Suffice it to say that the people of Texas(through the penal code) have told us what is capital murder, and the same people have told us what must be proved to to have a death sentence imposed, and suffice it to say that those same people have given the authority and decision-making to Attorneys for the State to seek the death penalty, not the some defense attorney or defendant. Any attempt to quantify the decision beyond that merely becomes argument - which opens up a neverending squabble of "what if's" and disgruntled opinion.

Snohomish County Prosecutor Mark Roe may not wait long before deciding whether to seek the death penalty against the prison inmate accused of killing corrections officer Jayme Biendl in January.

Details.