Allen County Prosecutor Karen Richards has not determined whether to seek the death penalty in the case of Michael L. Plumadore – accused of murder in the disappearance and death of 9-year-old Aliahna Lemmon.

But should she choose that option, there are currently no Allen County attorneys certified by the Indiana Public Defender Commission to handle a capital case and serve as Plumadore’s public defenders.

Allen County has plenty of qualified defense attorneys in terms of experience – including Plumadore’s appointed counsel Anthony Churchward and Mark Thoma. Both have handled capital cases before as public defense attorneys.

And should Plumadore come up with the money to hire his own attorney in what would likely be an expensive legal process, the state places no requirements on the private counsel who handle death penalty cases.

But a certified public defender is a different classification.

The certification – which requires prior experience handling death penalty cases as either a lead or “second chair” attorney and a 12-hour course on defending a capital case – allows the county to be reimbursed by the state for costs incurred during the case.

Using attorneys without the certification means no reimbursement.

Officials at the Indiana Public Defender Council said that after Churchward and Thoma were appointed, the Allen County Public Defender’s office inquired about upcoming training seminars in the state that would allow the two to meet the 12-hour training requirement and be certified for capital cases., The Public Defender Council is the state agency that supports public defenders and provides education.

None is scheduled in Indiana, but there are other classes before the end of the month in other states that would qualify, said Paula Sites, the Public Defender Council’s assistant executive director.

Randall Hammond, Allen County chief public defender, declined to comment on the certification status of local public defenders but said that if the county prosecutor decides to pursue the death penalty against Plumadore, he will have Public Defender Commission-certified attorneys available.

Costly process

Established in 1989 by the state legislature, the Public Defender Commission exists primarily to recommend standards for indigent defense in capital cases.

Counties that meet those standards can apply to the commission for reimbursement from the public defense fund in capital cases. Since 1997, that reimbursement can be up to 40 percent of a county’s cost for a death penalty case.

Deborah Neal, staff counsel at the Public Defender Commission, said the public defense of a capital case can cost a county between $200,000 and $800,000. Those numbers do not include other costs to the county, such as jury, prosecution and general court expenses, she said.

If a county prosecutor pursues the death penalty, and the court appoints public defenders to represent the accused and those attorneys are not certified by the Public Defender Commission, reimbursement is impossible, she said.

To be certified, the lead attorney must have at least five years of criminal trial experience, handled multiple felony cases and have experience in at least one case – as either lead or co-counsel – in which the death penalty has been sought, according to Indiana Rules of Criminal Procedure.

Both Churchward and Thoma previously have handled death penalty cases in different capacities, as well as multiple non-capital murder cases and other high-level felony trials.

To serve as co-counsel, an attorney must have at least three years of criminal trial experience and have experience as co-counsel or lead counsel in at least three felony trials, according to the criminal procedure rules.

And both must have taken, within two years, the 12-hour course, from either the Indiana Public Defender Council or a number of other states and organizations such as the NAACP Legal Defense Fund or the National Consortium for Capital Defense Training, according to the Public Defender Commission.

Capital cases decline

In recent years, the number of death penalty cases filed in the state has dropped, and the number of cases that resulted in a death penalty sentence is even less, according to state statistics.

In 2000, 11 death penalty cases were filed, with two death sentences handed out. In 2011, the number of capital cases filed was down to three, according to the Indiana Public Defender Council.

Allen County’s most recent death penalty case involved Simon Rios – who admitted to killing his entire family in Fort Wayne after he abducted a classmate of his daughter, sexually assaulted her and killed her in Delaware County.

He pleaded guilty a month before his trial and received consecutive sentences of life without parole. Rios hanged himself in an apparent suicide inside his prison cell in October 2008.

Prosecutors are beginning to recognize that the death penalty is not always the best use of their dollars, said Sites, at the Public Defender Council.

And at the same time, defense attorneys are finding better ways to spend their money for required continuing legal education, rather than on something used so rarely in the state, she said.

“Things that can be used much more often have a much more practical use,” Sites said. “We used to provide death penalty training every year, but we have cut back to every other year. It just doesn’t make sense, not just for lawyers to take it every year, but for us to provide it every year.”

rgreen@jg.net