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Prosecutor rejects giving defense early decision


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In the custody of Tony Sciscoe, of the Brown County Jail, Samuel E. Sallee arrives at the Brown County Courthouse Monday July 1, 2013. In addressing another pending case, Sallee, suspect in the slaying of four in Waynesville last month, appeared before a judge.  (Kevin Lilly | For The Republic)
In the custody of Tony Sciscoe, of the Brown County Jail, Samuel E. Sallee arrives at the Brown County Courthouse Monday July 1, 2013. In addressing another pending case, Sallee, suspect in the slaying of four in Waynesville last month, appeared before a judge. (Kevin Lilly | For The Republic)


Samuel E. Sallee’s defense attorney and the Bartholomew County prosecutor disagree over how quickly the state should have to decide whether to seek the death penalty for the suspect in the Waynesville quadruple slayings case.

Defense attorney David Nowak argued in a motion filed this week that Prosecutor Bill Nash should decide right away whether to seek the death penalty so a scheduled June 24 murder trial can occur without delays.

Sallee, 56, of Columbus has been charged with four counts of murder in connection with the May 11 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’s) position is that he is wrongfully held on these charges and his right to a prompt trial must be preserved,” Nowak said in a written argument presented to Circuit Judge Stephen Heimann.

On Thursday, Nash filed a written response in court, saying Indiana law and subsequent state Supreme Court rulings give prosecutors broad leeway to carefully weigh whether the death penalty is justified, and there’s no need for Heimann to impose an arbitrary deadline.

Creating a premature deadline, in fact, would simply force prosecutors to opt for the death penalty in too many murder cases just to preserve that option, and it would add unnecessary costs to legal proceedings, the prosecutor wrote.

Nash cited several state Supreme Court rulings in which prosecutors had opted to seek the death penalty as little as six or seven days before a scheduled trial date, and the courts ruled that did not compromise a defendant’s rights.

In his legal filing, Nash wrote that he “offered the court and defendant assurance that the decision won’t be undertaken lightly and will certainly not be used as some form of subterfuge for damaging the defendant’s constitutional and procedural rights.”

Nowak’s motion asked Heimann to rule by Monday, or alternatively for the judge to pick another date well in advance of Sallee’s midsummer trial when the prosecutor must decide if he wants to seek death or life without parole as a sentence.

Opting for a death-penalty trial adds to the complexity and expense because of procedural rules that must be followed. Other tenets imposed by Indiana courts require attorneys who take part in death-penalty cases to have experience at that level and special training.

The last death sentence carried out after a Bartholomew County court case occurred when Robert Watts, of Indianapolis, was found guilty of first-degree murder by a jury and sentenced to die.

Watts was found guilty of killing a woman from Indianapolis in 1947. Watts was ordered to die in Indi-ana’s electric chair, and the sentence was carried out Jan. 16, 1951.

Decision pending

Nash acknowledged last month that he has discussed the intricacies of death-penalty cases with some family members of the victims, but he hasn’t decided whether to seek the death sentence yet.

He declined to discuss the Sallee case any further on Thursday.

Indiana law requires prosecutors seeking death or life in prison to cite at least one aggravating factor, such as multiple people killed in a crime, to justify the sentence. The Waynesville case qualifies because four people were killed.

At least two family members have said they support death in Sallee’s case, if he is found guilty.

“That guy killed my whole family,” Daniel Burton, the son of victim Katheryn Burton, said Dec. 13 after Sallee was charged with murder. “I think I’ve earned a front-row seat to watch him die. I’d lump him together with Hitler, because I can’t think of anyone else who is that evil.”

Similar sentiments were expressed at the time by the widow of Aaron Cross.

“I’d be there to watch (the execution) in a heartbeat,” Kelly Cross said.

Quick answer sought

Nowak, Sallee’s defense attorney, argued that a quick answer on the death-penalty option is necessary because he and fellow court-appointed defense lawyer Christopher Clerc don’t qualify to handle death-penalty cases under the rules for such legal proceedings.

“If the prosecutor seeks death, two new attorneys would have to be appointed to handle the case,” Nowak said.

The Columbus-based lawyer said he and Clerc already are beginning to consult with Sallee, and if the prosecutor waits a long time to decide for capital punishment it would cause problems and extra costs.

Under federal and state rules, attorneys handling death-penalty defense work in Indiana have to meet a series of criteria, including having experience as lead or co-counsel in at least one other death-penalty trial and having completed 12 hours of capital punishment defense training sanctioned by the Indiana Public Defender Commission within the previous two years.

Sallee is indigent and doesn’t have the money to hire attorneys of his own.

If Nash waits until Sallee’s June 24 trial date is imminent before he decides on capital punishment, it would waste taxpayers’ dollars, Nowak said.

The defense lawyer said much of the fact-finding work being done by himself and co-counsel Clerc would go for naught in that situation.

The county pays public defenders out of the court’s budget, and “there’s no way two new lawyers could get ready for trial by June 24,” Nowak said.

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