Tuesday, October 12, 2004
Cost to try Burrow likely was 'extensive'
Two law professors say they don't think the cost of a federal prosecution is a sum that is typically calculated.
So how much did it cost to prosecute former National D-Day Memorial Foundation president Richard Burrow twice?
It's not a question that seems to have an easy answer. U.S. Attorney John Brownlee has not returned calls on the subject. Two law professors, the head of a national association of federal prosecutors and a former U.S. attorney in Roanoke say that they don't think the cost of a federal prosecution is a sum that is typically calculated.
"It's a massive undertaking," to prosecute a federal trial for several weeks, said John Edwards, a Carter appointee who served as U.S. attorney from 1980 to 1981 and is now a state legislator. "I'm not sure what the cost to the government would be, but I'm sure it would be extensive."
Later in the conversation, Edwards estimated that it could have cost in the "hundreds of thousands range" to prosecute Burrow twice.
Burrow's two federal fraud trials resulted in hung juries. Then last week, Brownlee asked for the dismissal of all charges against Burrow.
Though there may never be a magic number arrived at for cost of prosecution, both Edwards and Anne Coughlin, a law professor at the University of Virginia, say the cost of prosecution is something prosecutors bear in mind before proceeding with a case.
Prosecutors have been able to calculate costs in criminal tax cases, for example. And court-appointed defense attorneys are required to estimate costs in budgets to judges to defend big federal cases.
Obviously, every case is different. A one-day trial for a convicted felon possessing a firearm is going to cost a lot less than a federal death penalty trial with several defendants and court-appointed attorneys that involves experts and takes several weeks. Or tobacco litigation that is expected to drag on for months.
Scott Sundby, a law professor at Washington and Lee who also worked as a special federal prosecutor in Miami, said he didn't remember cost being taken into account when prosecutors decided what cases to go after, at least at his level.
"The fact is, most of these cases are fixed costs for the government," Sundby said. "They're paying the prosecutor anyway."
Dennis Boyd, executive director of the National Association of Assistant U.S. Attorneys, said in a voice mail message that he didn't have any information on the costs of federal prosecution, that the issue has never come up.
"I don't know that people are even keeping information on that," Boyd said.
The question of cost of prosecution was more considered in terms of how resources should best be used, as opposed to considering the actual costs of prosecution, Sundby said.
"Prosecutors did take into account the drain on resources, but it tends not to be translated into dollars," Sundby said. Prosecutors tend to think more in terms of time consumption than in terms of cost, Edwards said.
Coughlin also said she didn't know if prosecutors put a dollar amount on cases. But she said the government does not have unlimited resources.
"If they try one case, that means they're not trying another," Coughlin said. But she added that prosecutors are obligated to go forward in a case like Burrow's when they believe in good faith that there is evidence of serious wrongdoing.
That's not to say federal prosecutors are not capable of calculating costs of prosecution for certain cases, however. In criminal tax cases, for example, the government sometimes seeks prosecution costs, Edwards said.
"Ordinarily, you don't think of getting costs of prosecution back, except in tax," said Edwards, who thinks Brownlee made the right decision in not prosecuting Burrow a third time. "Even there it's kind of an estimate."
Edwards also said he recalls that at one point, the Department of Justice asked prosecutors to account for the time they spent on cases in increments of one-tenth of an hour. He also pointed out, however, that many salaried prosecutors work nights and weekends when preparing a case.
And federal prosecutors routinely seek forfeiture of items allegedly bought with money from criminal activity as part of their prosecutions. During fiscal year 2003, for example, Brownlee's office collected $10 million in forfeited assets, according to a statement released by Brownlee in December.
But Edwards, Sundby and Coughlin all said that when considering the costs of a trial, it is not only the costs of prosecution, but court and defense costs should also be considered.
"They're diverting prosecutors', agents', judges' and jurors' time - from other presumably very important cases," said Coughlin.
Coughlin and Sundby also said that the cost of the defense of the case should also be taken into account.
If defendants have court-appointed lawyers, for example, that also costs taxpayers money. Chief U.S. District Judge James Jones said that defense attorneys in capital murder cases are asked to present projected budgets to the judge in the case.
More recently, at the direction of the Administrative Office of the U.S. Courts, judges have also asked court-appointed defense attorneys to estimate the costs of defense if the case is expected to cost more than $30,000 or take more than 100 hours to defend, Jones said. And when defense attorneys submit their budgets, they also include projected costs for investigators and experts, if necessary.
But funding for court-appointed defense work comes out of the judiciary's budget, Jones said. Funding for federal prosecutors' work comes out of the executive branch's budget.
Burrow hired his attorneys, and it is not clear how much his legal bills amounted to. But Bob Archer, the head of Burrow's legal defense fund, said recently that the more than $200,000 raised by the defense fund is not even close to covering Burrow's legal fees.
WHAT DID THE BURROW TRIAL COST?
Here are factors that likely went into what it cost to twice prosecute former National D-Day Memorial Foundation president Richard Burrow: Time prosecutors spent on the case in preparation and court time for two trials.
Time federal agents spent on the case in preparation and court time for two trials.
Time support staff (paralegals, assistants) spent on the case for two trials.
Cost of photocopying evidence in the case for two trials.
Payment of expert witnesses for their time and their expenses for two trials.
Expenses for federal authorities working on the case for two trials.
Cost of transcripts from the first trial.