The High Cost of Criminal Litigation

Doug Berman has a good post here (and here and here as well) on the costs of prosecuting capital cases. It appears there’s been a big flap in Atlanta over expenditures for the defense of Brian Nichols, the fellow charged with killing several people in a rampage at the Fulton County Courthouse. Berman quotes an Atlanta Journal story suggesting that the cost of prosecuting Nichols will exceed the cost of the defense. I would expect as much. Notwithstanding complaints about the cost of indigent defense, prosecution of serious and complex cases costs a ton. The difference is that defense costs are fairly transparent: they are either funneled entirely through the court (in the case of court appointed counsel, and subsequent requests by counsel for costs related to litigation) or through a public defender’s office (and perhaps the court as well.) It’s easy to figure out how much it costs to defend a Brian Nichols. As Doug and the Journal suggest, costs of prosecution are much less transparent – but pop up everywhere…in police department budgets (and often across multiple different law enforcement authorities), prison budgets, state forensic lab budgets, court administration budgets, and potentially elsewhere as prosecutors seek assistance with their case.

At the end of the day, I’m not particularly troubled that very serious cases cost a lot. I worked for a couple of years at a large NY firm. Clients routinely spent over a million dollars in fees in a $10 million dispute. It’s always struck me that, on balance, the decision to execute a person – or to send that person to prison for life – is just as important as guarding cash in the corporate till. To put it another way, I absolutely believe that Brian Nichols is as entitled to excellent counsel as was Phillip Morris (cigarettes) or Johns Manville (asbestos) or Dow Corning (breast implants). When students ask how I could represent criminals as a public defender (or as the query is usually phrased at cocktail parties, ‘how can you defend those scum?”), one of the best explanations in terms of both accuracy and resonance with skeptics is equity: do rich people and corporations really “deserve” better counsel than poor people?

By the way, if you don’t recall the Nichols case, it’s the one where the defendant ended his siege by arriving at the home of one Ashley Smith. At first, it appeared that she subdued him with her newly discovered wisdom from The Purpose Driven Life. Much as Rick Warren loved this narrative, reality turned out to be somewhat more complicated. Here’s how Wikipedia captures what happened:

Smith was held hostage for several hours in her own apartment, during which time Nichols requested marijuana, but Smith told him she only had “ice” (methamphetamine). In her book “Unlikely Angel: The Untold Story of the Atlanta Hostage Hero” Smith revealed that she “had been struggling with a methamphetamine addiction when she was taken hostage” and the last time she used meth “was 36 hours before Nichols held a gun to her and entered her home. Nichols wanted her to use the drug with him, but she refused.” Instead, she chose to read to him from the Bible and The Purpose Driven Life. She tried to convince Nichols to turn himself in by sharing with him how her husband “had died in her arms four years earlier after being stabbed during a brawl.” Smith also writes that she asked Nichols “if he wanted to see the danger of drugs and lifted up her tank top several inches to reveal a five-inch scar down the center of her torso — the aftermath of a car wreck caused by drug-induced psychosis…. When news of his crimes was reported on television, Nichols looked to the ceiling and asked the Lord to forgive him. In the morning Smith cooked breakfast for Nichols.

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