Tracking the costs of trying a mass killer
CU News Corps
No one knows exactly how much taxpayer money was spent on the Aurora theater shooting case, but the three-year investigation and trial is surely one of the most — if not the most — expensive state criminal trial in Colorado history.
Figures obtained by CU News Corps from several public agencies show that the investigation and trial has cost at least $4.3 million, and those numbers will rise even more when the 18th Judicial District releases final figures early next year. Ten attorneys’ salaries for both sides — another $4 million — are not included in this figure, because they would be paid regardless of the trial happening. The ACLU of Colorado estimates the average cost of a death penalty trial to be $3.5 million, before any appeals.
“Given how much the prosecution cost, plus ancillary costs like security at the courthouse and police overtime, it’s a safe bet to say this was the most expensive case ever to be tried in Colorado,” said Steve Zansberg, president of the Colorado Freedom of Information Coalition.
But this is still only an educated guess from the longtime media lawyer — nobody can say with certainty what the costs of this trial actually are. Nobody except the people who spent the money.
CU News Corps filed official records requests with multiple entities, including the 18th Judicial District, the Colorado Bureau of Investigation, the Arapahoe County Sheriff’s Office and the Office of the State Public Defender. All requests were fulfilled, except that of the State Public Defender, who replied only with the salaries of the five attorneys who worked on the case for three years. Nobody outside of the public defender’s office knows exactly how much money was spent on psychiatric experts, forensics, travel or any additional costs.
State Public Defender Doug Wilson has been under scrutiny for not releasing his office’s bill for the trial, but Wilson said his ethical obligations to protect his client’s communications and confidentiality prevent him from doing so.
“My job is to protect that person sitting beside me,” Wilson said. “I have no duty or loyalty to you as a citizen, or to the victim, or to the governor or to law enforcement.”
FIGHT OVER DISCLOSURE
Colorado’s public defenders and prosecutors are now engaged in a very public spitting match over who spends how much in capital punishment cases and how much the public should know about those costs. 18th Judicial District Attorney George Brauchler said the public defenders have an obligation to the taxpayers to open their financial books. Brauchler led the prosecution of James Holmes and got him convicted, but lost his death penalty bid.
“They don’t want the public to know how much they spend,” Brauchler said. “Taxpayers should say, ‘We’ll give you money when you tell us how you spend it.’”
In response to the influx of criticism, Wilson filed his own open records requests with the Colorado District Attorney’s Council. He told CU News Corps that on a statewide level, the DA’s yearly budget is almost twice that of the public defender’s, or nearly $157 million.
Ernie Lewis, executive director of the National Association for Public Defense, said it’s dangerous to compare the budgets, because the two offices’ jurisdictions are funded differently.
Both sides are funded by taxpayer dollars: the 18th Judicial District’s budget is supported by its counties, the public defender is fed by the state. One aims to bring justice to victims and criminals. The other defends constitutional law and people who couldn’t otherwise afford an attorney. Both are vital to the functioning of our justice system.
Some prosecutors are starting to feel outmanned by the public defender’s office, which has been reported to often have more lawyers on a case than their opposition. Tom Raynes, executive director of the Colorado District Attorneys Council, said some counties can’t keep up.
“For example,” Raynes said, “In Pueblo, there are 22 prosecutors, but there are 26 public defenders. They get pounded down there.”
Wilson holds fast to his claim that he cannot — according to the American Bar Association — ethically divulge any details on the Aurora theater killer case, but his state-approved budget, along with performance reviews, is available on his office’s website.
“We are more transparent than almost any state agency, and we are more transparent than almost any prosecutor’s office in the state,” Wilson said.
Prosecutors claim they disclose every penny they spent on the Aurora theater shooter case, from how much they pay their experts to what it cost to stock the courtroom with tissues. Unlike the public defender, Colorado’s DA offices are subject to the Colorado Open Records Act.
The public defender’s office does not have to comply because it operates under the judiciary system — the entire branch can turn away CORA requests. Colorado is one of 13 states that exempts offices within the judicial branch from open records requests.
Some state lawmakers agree with Brauchler that disclosure should be required, and are working on a bill for the 2016 session that would make the state judiciary subject to CORA. But Wilson says even if such a bill passes, he would not — could not — give up the numbers. It’s going to take a lawsuit, he said.
“I’ve been waiting for you guys to sue me for three years,” Wilson said. “Sue me. Let’s find out. I believe we will win.”
Wilson cited Colorado Rules of Professional Conduct Rule 1.6, which he said preserves client confidentiality, and, along with Colorado law, shelters his office from having to release details about how it allocates much of its budget. If Wilson released the numbers, he said, he would face personal penalties, the worst possible being disbarred.
Lisa Teesch-Maguire, one of Brauchler’s deputy prosecutors who worked on the theater shooting trial, called Wilson’s use of Rule 1.6 a ruse.
“They just hide behind the veil of, ‘it’s attorney-work product,’ and I don’t think it is,” Teesch-Maguire said.
The high-profile mass murder trial is what drew attention to the defender’s spending, but it’s one piece of the office’s overall budget. Nationally, Colorado falls in the middle of overall spending for public defenders at $16 per resident. Oregon spends nearly $26 and Mississippi spends just over $5.
But when it comes to the death penalty, the Colorado defender’s office opens its wallet a little wider, said Bob Grant, the former district attorney who prosecuted Gary Lee Davis. Davis was the last person executed in Colorado, in 1997.
“I think they spend money on capital cases to say they spend money,” Grant said. “The public defenders want to make it as expensive as possible.”
Grant said it makes sense that the public defender puts greater fiscal emphasis on capital cases. But, he said, “Many people would question the basis for that magnitude of that expenditure. Outside of capital cases, I don’t have any reason to believe they’re frivolous in their spending.”
Here’s what the Office of the State Public Defender has released about its budget in response to open records requests from several news agencies, including CU News Corps.
● A figure that amounts to half of the office’s total attorney salaries for the entire state in the last 13 years went toward defending Holmes. Of the $4.34 million paid in salaries since 2002, more than $2 million was for salaries of the five attorneys who defended the mass murderer. Wilson pointed out that those attorneys would have been paid regardless of having the theater shooter case to work on.
● The office has spent at least $6.3 million on 10 death penalty cases over the past 13 years, according to documents obtained by CU News Corps from the Office of the State Public Defender.
● The office’s budget for next year will be $86 million. Last year it returned $500,000.
Here’s what CU News Corps has learned about money spent by District Attorney George Brauchler’s office to prosecute the killer. It reported spending a total of $1.84 million for the three-year investigation and trial. The office received a federal grant and money from judicial state funds that brought its out-of-pocket expenses down to $183,023. This number is subject to rise after the first of the year.
● $543,131 in total mandated costs funded by state funds, including $498,852 for expert witnesses and $44,279 in other costs associated with the trial (such as water bottles, tissues, subpoena services, witness travel).
● $1,114,498.92 in federal grant money spent, including $871,733 for Deputy District Attorney Lisa Teesch-Maguire, three victims advocates and one victim compensation specialist; 201,718 for victim travel; $28,846 for additional supplies; and $12,202 for “professional services.”
● $183,024 spent from the Office of the District Attorney’s operating budget included 75,123 for the help of retired DA Dan Zook, 66,433 for Teesch-Maguire’s salary from Jan. 20-Oct. 10, 2015, $20,000 in 640 hours of overtime, $12,809 for investigator travel and $8,658 for additional supplies.
Additional costs CU News Corps gathered from other public entities added up to nearly $2.5 million.
● The Arapahoe County Sheriff’s Office, $1.625 million for housing, feeding and transporting the defendant from his arrest in July 2012 until Aug. 28, 2015, the day after sentencing. The office received a grant of $403,218.77 to help with the costs.
● The Colorado Bureau of Investigation spent $17,265 investigating Holmes during a 13-month period. That includes ballistics, fingerprints, computer/IT information, and any other costs related to the case.
● The Colorado State Patrol Department of Public Safety spent $997 for a plane ride the killer took to the Mental Health Institute at Pueblo in late July 2014 for in-person sanity evaluations.
● The Colorado Department of Human Services spent at least $499,079 for 700 hours of service for two court-appointed psychiatric experts hired to examine Holmes.
That nearly half-million dollars does not include costs of testimony of state-appointed psychiatrists Jeffrey Metzner and William Reid during the guilt-or-innocence and sentencing phases of the trial. It’s normal for expert witnesses to be paid $300-600 per hour. At one point during the trial, Reid made a statement under oath said on-stand that implied he’d been paid “half a million dollars.”
● The Aurora Police Department tallied $315,200 for overtime.
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