Should a Billings man accused of kidnapping and murder join the short list of Montana prison inmates on death row?
That's a question Yellowstone County Attorney Scott Twito will have to answer.
And time is running out.
Twito has until April 17 to file a notice in Yellowstone County District Court that prosecutors intend to seek the death penalty against Simon Elliot Jacobson, the man accused of killing Dejuan Laster in January in an elaborate robbery scheme.
Twito's deadline for a decision is based on a state law that requires such a notice to be filed within 60 days of a defendant's arraignment.
If the notice is filed, it will mark the first time in nearly three decades that local prosecutors have sought the most severe punishment. And it will drastically complicate the case.
"There's probably not a more important decision I can make in my job, and it's not an easy decision," Twito said recently.
To help him make that decision, Twito plans a trip to Helena in the coming weeks to meet with some of the state's top law enforcement officials.
Among those at the meeting will be Montana's new attorney general, Tim Fox, and the top attorneys in the appellate and prosecutorial service bureaus within the state Department of Justice.
"I want to talk with them because of their experience in death penalty cases, but also because a death penalty case has an appeal phase that, if it gets to that point, is generally longer and even more complex than the prosecution or trial phase," Twito said. "I think it's only fitting, only fair, that I make that appointment and discuss with them the case."
Also expected to join the discussion will be veteran Yellowstone County prosecutor Ed Zink, and the two Billings police detectives who have been on the case.
Twito said he also intends to consult with other prosecutors around the state and with the victim's family before a decision is made.
"I've already begun the discussion with the victim's family to let them know the process," he said.
Jacobson, 28, is charged with deliberate homicide, aggravated kidnapping and kidnapping for the Jan. 17 abduction and slaying of Laster. In court records, prosecutors allege Jacobson hatched a plan to rob Laster and enlisted the help of James Adam Walker.
The two are accused of abducting Laster and his girlfriend from a Billings hotel while posing as FBI agents, and robbing them. The woman was later set free. Prosecutors say Laster was driven a few miles out of town and shot to death.
Laster's family mounted a search for the missing 29-year-old man, but within days phone records recovered from his girlfriend led police to Walker.
Walker then led officers to Laster's body, which was found in a culvert.
Jacobson was arrested a few days later in Denver.
Walker, 32, has been charged with deliberate homicide, aggravated kidnapping by accountability and kidnapping.
In charging documents, prosecutors allege Jacobson confessed to shooting Laster. Walker allegedly told police he was present when Laster was killed.
Prosecutors also say Jacobson has confessed to a string of armed casino robberies. He faces 11 additional robbery charges for 10 holdups in Billings and one in Livingston.
Twito said Laster's murder is a possible death penalty case under Montana law because the murder involved an aggravated kidnapping.
According to Montana law, the death penalty can be sought in murder cases only when circumstances described as "aggravating factors" apply to the case. The list of aggravated factors includes:
— the murder was committed by an inmate;
— the accused has previously been convicted of another murder;
— the slaying involved torture;
— the killer lay in wait or ambush;
— the killing was part of plan that would result in the death of more than one person;
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— the killing was committed during the course of a sexual assault or other sex offense against a minor;
— the victim was an on-duty peace officer;
— the victim's death resulted from an aggravated kidnapping or the death of someone who tried to rescue the victim.
Twito said he is required to consider the death penalty in the case against Jacobson because he has also been charged with aggravated kidnapping.
"I am sworn to uphold the law, and the law is we have the death penalty in Montana," Twito said. "My personal views do not factor into the decision. I have to look at the facts and decide what is appropriate."
It is unlikely, Twito said, that Walker will face the death penalty because he is charged as an accomplice to the aggravated kidnapping. But Twito said he has not made a final decision.
Along with the aggravating factors, prosecutors are required to consider what state law describes as "mitigating circumstances." Those include things such as a defendant's criminal history, whether the crime was committed "under the influence of extreme mental or emotional disturbance," and the defendant's age.
These mitigating factors will be the focus of defense attorneys as the time for a decision by Twito nears. Twito said he has already had some discussions about the case with David Duke, the top public defender in Billings, who has been assigned to represent Jacobson.
The public defenders
The Billings murder case, and its potential for the death penalty, have also caught the attention of leaders in the state Office of the Public Defender.
William Hooks, who leads the state office, said death penalty cases present unique challenges for defense attorneys.
The American Bar Association and the Montana Supreme Court have outlined a set of professional standards that must be adhered to by defense attorneys assigned to death penalty cases, Hooks said. In order to meet those standards, the office has coordinated a two-year training program with the University of Montana School of Law.
The Montana public defender's office has a major crimes unit staffed by four attorneys. The standards for death penalty cases require at least two attorneys be assigned to the defense.
Attorneys assigned to such cases require specialized legal knowledge, Hooks said.
"So you really need highly qualified and experienced attorneys," he said.
Those requirements also drive up the cost of trying such cases.
While Twito said he won't consider cost as a factor when making his decision in the Jacobson case, the expense of defending death penalty cases weighs heavy in the understaffed and cash-strapped public defender's office.
Harry Freebourn, the agency's administrative director, said $400,000 was spent last year on death penalty defense work. The agency is asking the Legislature for a $900,000 appropriation to supplement its current $500,000 budget dedicated to death penalty defense.
Most of that money will be spent on the only pretrial death penalty case in Montana, the kidnapping and murder of Sidney teacher Sherry Arnold.
Richland County prosecutors are seeking a death sentence against Michael Keith Spell and Lester Van Waters Jr., two Colorado men accused of abducting Arnold in January 2012 as she was jogging.
Trial for Waters has been set for Nov. 4. Spell's trial is currently scheduled for Jan. 6, 2014.
If Waters and Spell are convicted and are sentenced to die, they will double the inmate population on Montana's death row.
Two men are currently awaiting execution. Ronald A. Smith has a pending request for clemency before Gov. Steve Bullock. Smith, a Canadian citizen, was convicted of shooting two young men in 1982.
A spokeswoman for Bullock's office said recently that Smith's request for clemency remains under review.
Smith and the second inmate on death row, William Jay Gollehon, also filed a lawsuit claiming that the state's method of execution is unconstitutional.
Both men have exhausted all other appeals, and the state Department of Corrections has recently modified its method of lethal injection in response to the legal challenge by Smith and Gollehon.
Gollehon received a death sentence for his role in the murder of five other inmates during a 1991 prison riot.
The last inmate put to death in Montana was David Dawson, who was executed in 2006 for the 1986 slayings of three members of a family in a Billings motel room.
After years of appeals, Dawson successfully argued that his execution should be carried out. He said he had grown tired of life in prison.