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Old 05-25-2003, 09:18 PM
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Default Nevada re-examines its death sentence policies

May 25


NEVADA:


Death penalty measures considered by Nevada Legislature


Assembly Bill 13 -- Eliminates 3-judge panels that decide death penalty
decisions in cases of a hung juries, guilty pleas and bench trials.
Assembly approved a version that provides when a jury is hung during the
sentencing phase of a capital trial the presiding judge must impose a
no-parole life sentence. Still in committee in the Senate.

Assembly Bill 14 -- Gives defense lawyers in death penalty cases the final
argument at trial and adds mental illness as a mitigating circumstance in
murder. The bill has passed the Assembly but was rejected by the Senate
Judiciary Committee.

Assembly Bill 15 -- Outlaws capital punishment for the mentally retarded.
The U.S. Supreme Court ruled last year that executing mentally retarded
people is unconstitutional. Signed into law Wednesday by Gov. Kenny Guinn.

Assembly Bill 16 -- Establishes a procedure for death row inmates to
petition courts for DNA testing and allows DNA evidence to be used in
determining the innocence of death-row inmates convicted before DNA
testing was developed. It has passed the Assembly Judiciary Committee and
was being heard by the Ways and Means Committee. Senate Judiciary
Committee approved AB16 with an amendment that convicted murderers could
petition courts for new genetic testing of evidence and file for a new
trial if the DNA tests aid their case. If approved by the Senate, AB16
must return to the Assembly for concurrence in the Senate amendment.

Assembly Bill 17 -- Increases pay for lawyers who defend death penalty
cases to $125 an hour from $75 an hour. Backers say it will reduce appeals
on grounds that lawyers for death penalty defendants were incompetent. The
bill has passed the Assembly and Senate and was approved by the governor.

Assembly Bill 118 -- Prohibits the imposition of a death sentence for a
person under the age of 18 years. The bill passed the Assembly and was
sent to the Senate Judiciary Committee, which voted 4-3 to reject the
bill. Bill backers held out hope that some effort to limit executions of
youths could win approval as an amendment to other bills, but currently is
left on the shelf.


Nevadas unique system for sentencing some convicted murders to death is
being changed by the state Legislature after the U.S. Supreme Court ruled
that juries, not judges, must decide who should be executed.

The ruling, issued in June, holds that allowing a judge to decide a
capital case violates a persons Sixth Amendment right to trial by jury.

For some inmates on Nevadas death row, including a Reno man convicted last
year of murder, the ruling could mean a 2nd chance at life.

Some say Assembly Bill 13 and other measures being considered by lawmakers
represent a shift in attitudes across the state and nation about the use
of capital punishment. The measure remains in committee in the Senate.

Challenges to capital punishment that are before the state Legislature and
that have surfaced nationally include:

o The U.S. Supreme Court also ruled that executing the mentally retarded
is cruel and unusual punishment, and a bill in the Legislature to match
that ruling has passed both houses. Gov. Kenny Guinn signed that measure
into law Wedsnesday.

o A bill to prohibit the execution of juveniles that couldnt get a hearing
in a legislative committee last session has passed the full Assembly with
only six no votes but was rejected by the Senate Judiciary Committee.

o Saying the capital system is haunted by the demon of error, the governor
of Illinois in January commuted the sentences of all of his states death
row inmates.

I do think Nevada is part of the national trend where citizens are
questioning the fairness in how the death penalty is being applied, said
Assemblywoman Sheila Leslie, who chaired an interim legislative
subcommittee that studied capital punishment in Nevada and recommended
changes.

When youre talking about putting someone to death, there should be no
margin for error, said Leslie, D-Reno. If the system cant guarantee there
will never be a mistake, we have to question the whole idea of the death
penalty.

But Washoe County District Attorney Richard Gammick, said hes opposed to
the piecemeal process aimed at altering the capital system and limiting
executions in Nevada and other parts of the country.

We keep chipping away at it. If were going to abolish it, do it just have
the guts to stand up and abolish it, Gammick said. To have somebody spend
20 years on death row going through the appellate process is ludicrous.

Impacts on death row

A handful of Nevadas death row inmates already have been affected by
several high court rulings and more may follow as appeals file in. Others
will be affected by some of the changes in state legislation these rulings
have prompted.

The U.S. Supreme Courts finding last year that its unconstitutional for
judges to decide capital cases has resulted in a new penalty hearing
before a jury for Donte Johnson, a Las Vegas man convicted of 4
execution-style murders.

And Daryl Mack, a Reno man found guilty last year of strangling a woman in
her home and sentenced to death by 3 judges, hopes the state high court
will throw out his death sentence and grant him a new hearing before a
jury.

2 other men on Nevadas death row received a second shot at life following
the U.S. Supreme Court decision that mentally retarded people cannot be
put to death.

Based on that ruling, the state Pardons Board took Thomas Nevius off death
row and the Clark County District Court vacated the death sentence of
James Hill both because they are mentally retarded.

Nevius had been sentenced to death for killing a 34-year-old man in 1980
during a home invasion robbery in Las Vegas. Hill received a death
sentence for a 1983 assault in Las Vegas on a disabled woman who died in
the attack.

In early May, the state legislature approved a bill that will keep
mentally retarded people off death row.

A 3rd bill being considered by lawmakers prohibits the execution of a
person under the age of 18 years. The U.S. Supreme Court has not ruled on
executing juveniles.

3-Judge Panel

The bill aimed at changing Nevadas three-judge panel system is one of
several that would alter the use of capital punishment in the state.

Five other states have systems in which juries find guilty or innocence,
and then judges determine whether a person is put to death systems found
to be unconstitutional, said Assistant Federal Public Defender Michael
Pescetta, who specializes in the death penalty.

But Nevada is the only state in the country in which judges become
involved in the decision to issue a death sentence under certain
circumstances: if a jury deadlocks or the person pleads guilty.

When that happens, the Nevada Supreme Court sets up a 3-judge panel to
decide punishment.

Its unique, said Pescetta, who is based in Las Vegas. No other state has a
system where you can plead guilty or get a hung jury and you get a
different sentencer a sentencer who is predisposed to giving you death.

Pescetta began lobbying to change the system in Nevada long before last
years Supreme Court ruling.

His argument, he said, had to do with what he perceived to be the racial
bias of Nevadas 3-judge panel system.

Under the current statute, the sentencing panel must be made up of one
state judge from the district in which the person was convicted and two
judges from other districts in the state.

The problem is, Pescetta said, the only 2 black judges in the state are in
Clark County.

So if you dont pull one of those judges, and youre black, you can never
have a black judge on your sentencing panel.

And that has made a difference, he said.

The all-white sentencing panels have imposed death 75 % to 80 % of the
time, he said, while the panels that include a black judge are reverse:
they chose death 20 percent to 25 % of the time.

So if you are an African American and you get prosecuted and sentenced to
death in a department that does not have 1 of 2 black judges, you can
never have a black decision-maker in your case, and I think there is
something wrong with that, he said.

The racial disparity on the panels may have resulted in an imbalance on
death row, he said. Although blacks are about 6.8 % of the states
population, according to the April 2000 census, they make up 40 % of the
inmates facing execution.

New Bill Proposed

Before the Supreme Court ruling, the concern about racial balance was
enough for the legislative subcommittee to recommend eliminating the
three-judge panel system, Leslie said.

The bill passed out of the Judiciary Committee, but when it hit the
Assembly floor, lawmakers amended it to include a default that faces some
opposition.

The original bill allowed the judge to impanel a new jury if a jury
deadlocks on whether to impose death a provision supported by
prosecutors.

But under the new bill, if a jury deadlocks the defendant automatically
gets life in prison without parole. Leslie and Pescetta said this version
is more fair.

The prosecution should not get second and third chances, Leslie said.

Pescetta said that when a judge questions potential jurors for a capital
case, they are automatically dismissed if they say they could not sentence
someone to death.

Every jury on a death penalty case is pretty primed to impose death, so it
seems to me if they cant convince that jury to kill the guy, theyve had
their shot, he said.

But Clark Peterson with the Clark County District Attorneys Office told
lawmakers during a hearing on the bill that the default to life in prison
would hamper efforts to seek death penalties.

Under the default plan, if a person was convicted of murder and a jury
deadlocked in the penalty phase with only one juror against death, he
said, the state would not be able to seek a death sentence for that person
again.

A more balanced system in the case of a deadlock, Peterson said, would
allow the defendant to choose between a jury and a 3-judge panel. Theres
nothing more constitutional than choice, he said.

Assemblyman Jason Geddes, R-Reno, said the default to life in prison
without parole is unfair to both sides. Prosecutors lose the chance for a
death sentence and the defendant loses an opportunity for a lesser
sentence, like life with parole.

Gov. Kenny Guinn has not taken a position on the debate, said Greg
Bortolin, his press secretary.

The governor does support the death penalty, Bortolin said. But as far as
bills working their way through, he wont comment on them until they reach
his desk.

Life in Prison

Leslie said she holds sympathy for those who have suffered through the
trauma of a murder and said a prison term is adequate punishment.

Its a harsh and deserving punishment for a murderer, she said. A sentence
to life in prison is sometimes a sentence worse than death. You do not get
out.

Thats the appropriate remedy in my mind, she added. It doesnt bring back
the loved one, but executing the inmate doesnt bring back the loved one
either.

But Geddes disagrees.

I consider it an appropriate response to a heinous crime, Geddes said.
There are certain crimes you can forfeit your right to be a member of our
society.

(source: Reno Gazette-Journal, May 24)
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