State executions, the fair way

When it comes to death penalty cases, Nevada law gives first and last arguments during death penalty trials to the prosecution. During the part of the trial where the prosecution has to prove “beyond a shadow of a doubt” that a defendant is guilty, that makes sense. But during the penalty phase of the hearing, after a defendant has been found guilty of a first-degree murder that would send that person to death row, the defendant’s attorney should get the last word. Or so says Clark County Public Defender Phil Kohn, who testified recently to the Assembly Judiciary Committee on the benefits of one of several Assembly bills that make reforms to Nevada’s death penalty laws.

Assembly Bill 14 would change the order of arguments during the sentencing phase of a death penalty trail.

Kohn says the current order of closing arguments represents “a major gap” in fairness. “In any type of discourse, there’s a certain advantage to going first or last,” Kohn says. “In death cases, the district attorney goes first and last.”

Frequently, prosecutors address issues in their final argument that the defense has never had a chance to address during the trial. A change is needed, he says.

“Then neither side would be free to sandbag or to bring up new issues,” he says. “This is the common-law approach. This is the way debates run. This is about fairness.”

Two years ago, death penalty foes backed a few reform bills in the Nevada Legislature. One proposed bill would have banned the execution of the mentally retarded in Nevada. One called for raising the age of a defendant for whom the death penalty could be sought.

Opponents of death penalty reform, a group made up of prosecutors across Nevada, fought the good fight.

“They opposed all of those bills vehemently,” says Nancy Hart, Amnesty International death-penalty-abolition coordinator in Nevada. “They said the system worked fine.”

The times have changed. Across the nation, even death penalty advocates are starting to agree that the system does not work fine.

In June 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that the execution of those with mental retardation was a violation of the Eighth Amendment ban on cruel and unusual punishment. In another decision, the court ruled in Ring v. Arizona that it is unconstitutional to have judges, rather than juries, sentence defendants. Studies consistently show that judges impose the death penalty with more frequency than juries.

This decision called into question Nevada’s practice of allowing a three-judge panel to impose the death sentence. “Three-judge sentencing panels are unfair and inappropriate in light of the Supreme Court’s decision and the right to trial by jury,” Hart says.

A struggle for fairness when doling out death sentences is the tie that binds five bills being hashed out in the Assembly Judiciary Committee during this session of the Nevada Legislature. The bills came out of the Legislative Commission’s Subcommittee to Study the Death Penalty and Related DNA Testing, a group established by the 2001 Legislature.

Assembly Bill 13 would eliminate the use of three-judge panels to impose the death penalty in the case of a hung jury. It also calls for questionnaires to gather information on a first-degree-murder defendant’s age, race, gender, family history, results of psychiatric evaluations and several other topics such as whether sexual orientation had a part in the crime. A data bank with this kind of information would make it easier to study inequities in the doling out of the highest order of punishment.

Besides changing the order in which attorneys would debate during the penalty phase of a death penalty hearing, AB 14 would take away one of the many circumstances for which the death penalty can be sought in a first-degree murder trial. And it adds as a mitigating circumstance, “The defendant suffers from a mental illness or has a history of mental disturbance.”

Hart says that, right now, given a prosecutor’s discretion, the death penalty can be sought in just about any murder case.

“The list of qualifiers [for the death penalty] is so long, there’s no homicide that could not be charged as a death penalty case,” she says. “The idea is that we should be tailoring that list so we are truly picking the worst of the worst.”

AB 15 prohibits a death sentence for the mentally retarded.

“These are people in the bottom percentages of mental functioning, and they’re simply not as culpable as the rest of us,” Hart says. “It’s a huge concept of fairness.”

When accused of a crime, the mentally retarded tend to confess more, she says. “They’re eager to please both law enforcement and co-defendants. That makes them much more likely to take the hit, to admit to cops that they were not only involved but they were promoters of incidents, even if they weren’t.”

This makes them more likely than others to receive the death penalty. Before the Supreme Court ruling, an estimated 10 to 15 percent of inmates on death row were considered mentally retarded.

“When you hear the testimony, you begin to understand that this is not a group of people we should be killing,” Hart says. “If they’re unsafe, of course they should be imprisoned. But the death penalty is intended to be for the worst of the worst. … We simply can’t say that those with mental retardation are in that category or should be in that category.”

AB 16 would allow a person sentenced to death to request a genetic marker analysis of the evidence. It would provide for a stay of execution pending results of the DNA tests and require a court “to arrest judgment if such an analysis is favorable to the petitioner.”

AB 17 bumps up the fee cap for public defenders representing a person accused of a felony punishable by death from $12,000 to $20,000. It requires that when the court appoints an attorney other than a public defender to a first-degree-murder case, the court must also appoint a team including an investigator, a mitigation specialist or equivalent, a forensic psychiatrist or psychologist and any others deemed necessary by the defendant’s attorney. The move would help poor defendants gain access, at some level, to the same kinds of resources as wealthier defendants.

After hearings on all these bills by the Assembly Judiciary Committee, AB 15 and 17 were amended and approved on Tuesday.

Bob Fulkerson of the Progressive Leadership Alliance of Nevada is hopeful that, this session, death penalty reforms will fare better.

“[There’s] a lack of opposition to reforms during this session, as opposed to the last session,” he says. He’s especially optimistic about the ban on executing the mentally retarded.

"This time, even with a more conservative Assembly, it will sail through," he predicts. "It shows people are taking a more thoughtful approach, and it also demonstrates the good work of the interim committee that unanimously supported several reforms being considered this session."