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Howard attorneys want death penalty option dropped
By Barbara Vitello | Daily Herald Staff
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Published: 6/30/2009 12:00 AM

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Citing a lack of funds to mount an effective defense, the assistant public defender representing D'Andre Howard asked the court remove the death penalty as an option or to allow the public defender's office to withdraw from the case.

Assistant public defender Jim Mullenix made the motion Monday before Cook County Judge Joseph Urso, the presiding judge of Rolling Meadows' Third Municipal District. Urso is presiding over the trial of 21-year-old Howard, charged with first-degree murder in the stabbing deaths of Laura Engelhardt, her father Alan Engelhardt and her maternal grandmother Marlene Gracek in their Hoffman Estates home in April.

Urso did not rule on the motion Monday.

Howard's case is one of about 60 capital cases which attorneys from the Cook County public defender's office claim they cannot adequately defend because the office's portion of the Capital Litigation Trust Fund is bankrupt. The litigation fund helps pays for DNA testing, expert witnesses, mitigation specialists and other expenses associated with death penalty cases. The fund also pays for capital prosecutions and for private attorneys appointed by the court to represent indigent defendants. Illinois legislators established it nine years ago after the courts overturned the wrongful convictions of 13 indigent defendants sentenced to death.

Assistant state's attorneys Maria McCarthy and Mike Gerber had no comment on the motion. However, earlier this month, representatives from the Cook County State's Attorney's Office suggested the public defender's office could pay for capital defenses out of its general fund. Moreover, the state's attorney's office also contends that it's up to prosecutors to determine which cases are capital, providing they meet certain statutory requirements.

The legislature approved an increase in the public defender's portion to $2.25 million for 2009, but former Gov. Rod Blagojevich used his line-item veto to reduce funding to the previous year's $1.75 million. The earliest it could be replenished is September, unless the General Assembly votes to allocate emergency funds to the public defender's portion during this week's special session. That could make Mullenix's motion moot. However, a backlog of unpaid bills could eat up any emergency funds the legislature approves. In fact, the public defender's office estimates that 75 percent of the funds allocated for 2010 will go to pay off old debts.

If Urso grants Mullenix's motion to withdraw, the court could assign Howard a private attorney, which the court would pay for out of a separate fund that totals about $2 million.

Prosecutors have not yet determined whether they will seek the death penalty for Howard. Until they do, the court will proceed as if it were a capital case. The prosecutors' decision will likely come this fall.