Cost of justice in prison riot will be huge


Sixteen inmates are facing murder charges for the death of Delaware Correctional Officer Lt. Steven Floyd during the February uprising at James T. Vaughn Correctional Center near Smyrna.

DOVER — Describing the indictment as “unprecedented in its scope,” Delaware’s lead public defense attorney expects “hundreds, if not thousands of hours” will be spent representing each of the 18 inmates charged after a prison riot left a correctional officer dead in February.

In addition to attorney fees set at $90 per hour, the State of Delaware will pay for other defense needs such as investigators and forensic experts, among other costs and rates to be determined.

“These expenses add up,” Public Defender’s Office Chief Brendan O’Neill said. “They are paid with public funds.”

The U.S. Constitution mandates protecting the rights of the prisoners who allegedly participated in the takeover of James T. Vaughn Correctional Center near Smyrna on Feb. 1-2.

The indictment was announced by the Delaware Department of Justice on Tuesday.

Correctional officer Lt. Steven Floyd was killed during the riot.

Sixteen prison inmates were charged with first-degree murder after more than eight months of investigation.

Two other officers were injured and taken hostage with a counselor during the nearly 22-hour uprising last winter.

According to Mr. O’Neill, “there is no case in recent memory” that included so many first-degree murder charges in a single indictment.

While any defendant has a right by law to hire private lawyers for representation, Mr. O’Neill expects all 18 defendants (two were charged with first-degree kidnapping and second-degree conspiracy only) to use the services of taxpayer-funded lawyers.

The cost of providing a defense for the inmates will likely far exceed two other high profile cases involving multiple first-degree murder suspects, which are still ongoing, the Public Defender said:

• The Paladin Club case that began in September 2014 and involved three suspects cost $727,003.

• “Operation: In the House” cost $497,367 for defending six first-degree murder suspects beginning in June 2015. There were 29 other defendants charged with other offenses as well.

On Friday the Delaware Department of Justice said it was undetermined how the defendants would be prosecuted, individually or as a group.

The Department of Justice enlisted approximately three prosecutors and “a handful of paralegals and administrative staff” to investigate the Vaughn matter and bring an indictment, spokeswoman Nicole Magnusson said.

A recent Only My Brothers gang case required three prosecutors facing 28 defendants, each with their own lawyers, the Department of Justice said.

“All 28 defendants pled to or were found guilty of charges, all while those hard-working prosecutors and staff handled multiple other investigations and prosecutions at the same time,” according to Ms. Magnusson.

The Department of Justice said it handled several cases with large numbers of defendants in recent years stemming from gangs or criminal enterprises, some involving multiple murder charges.

In the Vaughn indictment announced Tuesday morning, 16 defendants were each charged with three counts of first-degree murder (intentional murder, felony murder, and recklessly causing death of a correctional officer), two counts of first-degree assault (a count each for two correctional officers), four counts of first-degree kidnapping (a count each for Lt. Floyd, the two correctional officers and counselor), one count of riot, and one count of second-degree conspiracy.

Two inmates were each charged with four counts of first-degree kidnapping, one count of riot and one count of second-degree conspiracy.

How many trials?

Trying all the defendants individually could create “a level of confusion that would be enormous,” said David LaBahn, president and CEO of the Association of Prosecuting Attorneys.

If a lone proceeding isn’t possible, Mr. LaBahn thinks the prosecution should “try to reduce it to only a couple of trials.”

“Co-defendant cases including murders are common, but 16 is a large number and would need special accommodations,” he said.

Mr. LaBahn said the impact on victims experiencing multiple trials is one drawback. And a growing number of transcripts, witnesses and testimonies could potentially conflict with each other, he said.

The former prosecutor said he has seen large indictments of gang and drug dealing organizations at the federal level. “At the state level, it’s not that often that you see something of this magnitude,” said Mr. LaBahn.

Acknowledging that he has only an outside view of what information prosecutors may have, Mr. LaBahn said the case seems “very large and complex. There’s no video evidence.

“It took investigators a substantial amount of time to determine what was believed to have taken place,” he said. “There are some forensics, but not a lot. It’s like being in a home in which much of the possible material may have previously existed before any incident ever occurred.”

Sara Jacobson, director of trial advocacy programs and associate professor at Temple University’s Beasley School of Law, said the number of defendants can create challenges.

“There probably will be competing theories and people pointing the finger at each other,” she said.

It’s possible that some defendants could decide to turn state’s evidence with the incentive of lessened prosecution against them, Ms. Jacobson said.

“Lawyers and judges can be very creative and there are sure to be incentives for people in an effort to resolve the matter (more quickly and most fairly),” she said.

Ms. Jacobson said the time taken to bring charges made it “clear that this investigation was taken very seriously and there was a lot to unpack on this.”

Widespread discussion

The siege sparked passionate, widespread debate about conditions inside Delaware’s prisons and how they factored into the riot, kidnapping and Lt. Floyd’s death.

In a small state, finding an unbiased jury pool could be challenging, especially if multiple trials are held.

“There might be many potential jurors who either have the opinion of whether the DOC screwed up or the inmates took the officer’s life and must be held accountable for it,” Ms. Jacobson said.

The possibility of moving a trial or trials out of state due to the case’s notoriety is real, she added.

On a policy level, Ms. Jacobson said, “public scrutiny” can be positive.

“If reform can be made for correctional officers to be more safe in their duties and the needs and concerns of inmates can be addressed, that’s not a bad thing,” she said.

Mr. LaBahn believes a single trial should be held as the prosecution drills down to “who did what, when, how and why did it happen?”

Multiple prosecutions could take years to complete, he said, prove costly and bring on legal chaos involving the defendants’ culpability.

In the end, Mr. LaBahn maintains, “This is an incredibly complex case but I do believe there are great lawyers in the (Department of Justice) and it will be figured out.”

The Public Defender’s Office will use its Office of Conflicts Counsel to assign lawyers to represent each of the 18 defendants. The private attorneys will be hired as independent contractors, which officials described generally as making less money than they would earn in the private sector.

“The impact will be huge,” Mr. O’Neill said when asked if the indictment will tax the public defender’s ability to handle other business.

On Friday morning the Public Defender said the Office of Conflicts Counsel is currently meeting with each potential client and assigning lawyers to represent the defendants eligible for publicly funded counsel. Of the 18 defendants, 10 had been assigned lawyers.

Outside counsel is enlisted for indigent defendants when the Public Defender’s Office is ineligible to represent them. In the Vaughn case, the Public Defender evaluated the circumstances and recused itself for undisclosed reasons.

Estimating costs

All the defendants will likely enter not guilty pleas when arraigned in Superior Court, Mr. O’Neill said. No court appearances had been scheduled as of Wednesday, according to the public defender. Bail was established and all defendants remained incarcerated by the Delaware Department of Correction.

Though the Public Defender’s Office estimates costs it will need through General Assembly approval, Mr. O’Neill said, “[o]ne of the problems in planning our budget is that we do not know whether or when the Office of Conflicts Counsel will be called upon to defend multiple defendants in a single case.

“The (Office of Conflicts Counsel) neither knows how many defendants the State will charge nor when the State will charge them.”

The office had a nearly $25 million budget legislated for Fiscal Year 2018, which began July 1. Mr. O’Neill said the Public Defender would keep the Office of Management and Budget updated on accumulating costs of the Vaughn case.

The Department of Justice pulls from its Contractual Services budget to obtain “expert witnesses, evidence testing and other costs for serves associated with investigations and trials,” Ms. Magnusson said.

“In the last two years, when critical but expensive experts or tests have been necessary for criminal cases, Department of Justice has received permission from state budget officials to use other funds in the department to meet those costs, though that reduces funds available in those areas.”

The Public Defender’s Office said Wednesday that no probable cause affidavit detailing the alleged circumstances that brought charges was available.

By law, the Public Defender’s Office can take only one indigent client involved in a multi-defendant case due to the rules of professional conduct and legally recognized conflicts.

The Public Defender’s Office said it takes about 85 percent of all indigent cases, with the Office of Conflicts Counsel handling 15 percent.


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