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Chambers didn't respond to a request for comment on that conversation. She says the reasons for seeking the death penalty in any given case can be found in the list of "aggravators" the prosecution submits to the court. One such aggravator can be a defendant's prior record, and Perez has killed before; he's already serving 32 years for a 1997 second-degree-murder conviction. But Chambers declines to provide specifics of her rationale for seeking to execute two of the three defendants in the Heird case. (The third inmate charged in the death, Michael Ramirez, allegedly served as an accessory and is not facing death.)
"We do not provide any elaboration concerning this list of aggravators in advance of the sentencing phase," Chambers says, "to avoid that information winding up in the press and making it more difficult to select a fair and impartial jury."
But Lane sees another reason for the DA to seek to kill his client: Because the homicide happened in a prison, she doesn't have to pick up the tab for the prosecution. "What makes it a capital case is that Carol Chambers is making money hand over fist by pursuing it as a capital case," he says.
Documents obtained by Westword indicate that the DA billed the DOC $204,000 for work on the case in the first six months of 2007. That includes the entire salary and benefits package of Chief Deputy District Attorney Dan May, a paralegal and an investigator — all of whom are presumably spending all of their working time on the Bueno-Perez prosecution — as well as a good chunk of the salaries of two other prosecutors, a legal intern and a legal secretary. The bill also includes nearly $10,000 in expert-witness fees, $50 per day travel allowances, mileage charges, lodging and office supplies. In addition, Chambers's office has charged the DOC more than $15,000 in recent months for costs associated with the resentencing of Edward Montour Jr., a Limon inmate who killed a corrections officer in 2002 and whose judge-imposed death sentence was overturned on appeal.
The arrangement has raised eyebrows on the legislature's Joint Budget Committee, which recently was hit up for a special $290,000 line-item request by prison officials to deal with past and ongoing prosecution bills. Lawmakers grudgingly approved two-thirds of the payment and instructed prison officials to return for more as the bills mount up. "Our obligation is to follow the statute until somebody changes it," says DOC spokeswoman Katherine Sanguinetti.
"We are paying Carol Chambers's office to pursue death-penalty cases when everyone involved knows that the death penalty won't be carried out," says state representative Paul Weissmann, who voted against giving the DOC supplemental funding. "It is an enormous waste of taxpayer dollars and yet another reason why the death penalty should be eliminated in this state."
Lane filed a lengthy motion in the Perez case in January, arguing that the billing arrangement has contaminated the independence of the prosecution and provided a financial incentive to pursue the death penalty against his client. He also contends that the statute only allows Chambers to recoup actual prosecution costs, not the salaries of her employees, and claims that the billings are inflated with lawyerly padding — for example, charging a mileage rate in excess of what state employees are allowed and billing phone calls in no less than quarter-hour increments, even though they might last only a minute or two. "They're making a huge profit," he insists.
Chambers responds that her billings reflect "an overconservative estimate" of the time her staff is actually spending on the case. Her office shifted from billing by the hour to assessing portions of staff salaries in the latter half of 2007, she says, and that includes May's entire compensation, an arrangement that she contends actually reduces the amount billed. "Our staff ends up working more time on these cases than we are billing the DOC for," she says.
The prosecution has little control over the costs of a death-penalty case, she adds: "The state gives the court-appointed criminal defense bar enormous resources to litigate these cases, and the defense bar uses them. That is what drives the cost up into the millions of dollars. The defense bar spends an enormous amount of money, continues these cases for as long as they can, and then argues that the death penalty costs too much to pursue."
"If the defense has filed one frivolous motion in any death penalty case her office is prosecuting," Lane counters, "she's obligated to seek sanctions against anyone who does that, and she should file a grievance against them as well. It just hasn't happened. People spending their life's energies defending these cases aren't being frivolous."
Last week, attorneys for Nathan Dunlap, Colorado's sole inmate on death row, filed a 750-page motion in federal court seeking to overturn his death sentence, which has been under appeal for twelve years. Nationally, the legal costs associated with executions have gone up considerably since 1999, even as the annual number of executions has dropped from 98 to 42, according to data compiled by the Death Penalty Information Center, a group opposed to the practice. California, which has 660 inmates awaiting execution, spends $114 million a year beyond the costs of keeping convicts locked up for life to maintain its system. Florida, which has executed 44 inmates since 1976 and has 397 more to go, spends $51 million a year more than it would cost to keep all first-degree murderers in prison for life; that works out to $24 million per execution. Last year a legislative council pegged Colorado's death-penalty costs at $770,000 a year, but that is bound to climb sharply if the seven defendants now facing capital cases are actually sentenced to death (see story, page 24).