Bartholomew Circuit Judge Stephen Heimann wants to know by Feb. 20 if the county prosecutor has ruled out seeking the death penalty when Waynesville murder suspect Samuel E. Sallee goes to trial this summer.
If Prosecutor Bill Nash doesn’t declare the death penalty is out of consideration by that date, Heimann said he will appoint two new attorneys from outside Bartholomew County who are qualified to handle complex, death-penalty cases to take over Sallee’s defense.
The judge’s eight-page ruling acknowledges the legal tightrope he’s walking in trying to protect the 56-year-old Sallee’s right to a prompt trial and adequate defense and to allow the prosecutor’s office sufficient time to weigh the pros and cons of seeking death.
The ruling does not set a deadline for Nash to declare that he will seek the death penalty, only prompt notice if the prosecutor has ruled it out.
“This will preserve Sallee’s due-process rights in the event that the state decides just before trial to file a death-penalty enhancement,” Heimann’s order concludes.
Heimann pointed out that death-penalty cases follow more intricate procedures than other trials, and that will add greatly to the expense and length of legal proceedings.
David Nowak, one of two Columbus attorneys named earlier this month as public defenders to represent Sallee, had filed a motion in court trying to force Nash to decide on seeking death or not by this week.
If Bartholomew County Prosecutor Bill Nash does not notify the court by Feb. 20 that he has ruled out seeking the death penalty when Waynesville murder suspect Samuel E. Sallee goes to trial this summer, Circuit Judge Stephen Heimann will appoint two new attorneys with training in death penalty cases.
But Nowak said he thinks Heimann’s decision is a fair one.
“It accommodates what I sought to obtain,” Nowak said Tuesday. “I am going to do everything I can to get this case to trial as scheduled on June 24.”
Sallee has been charged with four counts of murder in connection with the May 11, 2013, shooting deaths of Katheryn M. Burton, 53; Thomas W. Smith, 39; Aaron T. Cross, 41; and Shawn L. Burton, 40. All of the victims were found slain in a Waynesville home that evening when Katheryn Burton’s adult son came home from work.
Sallee has been declared indigent by the court and currently is represented by a pair of court-appointed attorneys from Columbus — Nowak and co-counsel Christopher Clerc.
They would have to be replaced if Sallee’s trial becomes a capital punishment case.
Court rules in Indiana and federal death-penalty guidelines require specific training and experience for defense counsel in such cases, and not a single lawyer in Bartholomew County has those qualifications, Heimann wrote.
Nowak said Bartholomew County attorneys who serve as public defenders generally don’t go to the time and effort of getting qualified to handle death-penalty cases because it’s extremely rare to have a death-penalty trial in Columbus. Attorneys who handle death trials must have experience in such cases and have completed certain training courses offered by the Indiana Public Defender Commission.
Heimann’s order notes that intricate death-penalty rules of procedure would complicate the Sallee trial from the moment jury selection began.
Interviews with prospective jurors would have to be conducted individually. And because of the sensitive nature of death cases, Heimann estimated that an additional 100 people would have to be brought in for initial jury interviews.
“Jurors would be sequestered from the beginning, so the court would need to make arrangements for hotel accommodations and security and transportation, etc.,” Heimann wrote.
Higher costs, longer trial
Nowak said two new defense attorneys from Indianapolis probably would have to be hired by the court, and that likely would boost the hourly rate they would be paid to represent Sallee and add to travel expenses.
The defense lawyer said he does not see the value of seeking capital punishment in the case, considering Sallee’s age and the lengthy appeals process should his client be convicted.
Under Indiana law, a murder conviction carries a minimum sentence of 45 years to a maximum of 65 years in prison, meaning that if Sallee were convicted of four killings, he could get from 180 to 260 years in prison.
“At his age, Mr. Sallee wouldn’t be getting out of prison anyway, if convicted,” Nowak said Tuesday.
Nash didn’t reply to a request for comment on the judge’s ruling.
Heimann described his decision as a “novel — yet safe approach.”
Heimann wrote that he did not want to risk setting a firm date by which Nash had to declare in the affirmative that he was seeking death for Sallee for fear a higher court would disagree with the arbitrary date he picked.
If that occurred, Sallee might win a second trial on appeal, and that would only serve to extend the case and add to the expense of all the legal proceedings, the judge said.
Heimann made reference to one Floyd County murder case that began with the arrest of a suspect in October 2000 and ended with the man’s acquittal of multiple killings 13 years later after three trials prompted by “intricacies of the case and the unintended errors made at trial.”
That case cost Floyd County more than $4 million, and “another individual was eventually convicted of the murders,” Heimann said in his court ruling.
“The reason that this court is pointing to these cases is because they ... illustrate how critically important it is for the trial court to be extremely cautious in rulings in cases of this magnitude,” the judge wrote. “If this court were to err in its decision on the question of the timing of the (death-penalty) filing, it could cause the case to drag on for years and years.”
Nowak said a death-penalty trial for Sallee could easily consume 20 days in court at the initial trial.
The most recent death sentence carried out after a Bartholomew County court case occurred when Robert Watts, of Indianapolis, was found guilty of first-degree murder and sentenced to die. Watts has been accused of killing a woman from Indianapolis in 1947. He was ordered to die in Indiana’s electric chair, and the sentence was carried out Jan. 16, 1951.