Study at center of debate on death penalty

Erin Neff

Friday, Feb. 22, 2002 | 10:55 a.m.

A controversial death penalty study took center stage Thursday as state lawmakers try to determine whether Nevada's capital punishment system is broken enough to warrant fixing.

Prosecutors and victims' rights advocates called a Columbia University Law School study that criticizes the death penalty flawed; defense attorneys and one of the study's authors labeled Nevada's system as the one with the mistakes.

Columbia's recent study -- a followup to a 2000 report -- found a 68 percent error rate in death penalty cases nationwide and a 64 percent rate in Clark County, according to a review of court documents in cases from 1973 to 1995.

Errors include biased jurors or judges, flawed jury instructions and prosecutors withholding evidence.

"Reversals were much more common in a case where the death penalty evidence was weak," testified Columbia law professor James S. Liebman via teleconference from New York.

Liebman said states or counties with high numbers of death penalty cases have more chances for errors that lead to a case's reversal.

But Attorney General Frankie Sue Del Papa defended her office and the state's system in general.

"I seriously question the validity of some of the national statistics as to how they relate to Nevada," Del Papa said to the committee in Carson City. "Suspension (of the death penalty) is not warranted or needed in Nevada."

Michael Pescetta, a federal public defender who represents a number of Death Row clients, said a lack of centralized reporting about death penalty cases in Nevada makes it difficult to review problems.

Pescetta said a conservative 60 percent of cases that have been fully litigated are reversed.

"I want to say, 'Phooey'," responded Ben Graham of the Clark County District Attorney's office. "A lot of what was said sounds good in abstract, but last year we sentenced one person to the death penalty (in Clark County)."

"It's fine to grab numbers out of the air," he added. "A lot of this sounds like a journalist talking and not a lawyer."

But Nevada Supreme Court Justice Bob Rose said he thinks there are problems with the state's capital punishment system to warrant reform -- including the use of three-judge panels to decide the penalty phase in certain cases.

"A judge never lost his job by being tough on crime," Rose said.

Rose also suggested that two of the aggravating factors juries consider in the penalty phase are "extremely broad" and warrant a change.

In Nevada a three-judge panel is used to determine the penalty phase in a capital case if the defendant pleads guilty, if the defendant waives his right to a jury trial and if the jury is hung on the penalty phase.

Pescetta said he had serious questions about the panels, in part, because of the extremely different results they achieve when a black judge is included.

If all three judges are white, the death penalty is imposed 73 percent of the time. If one of the judges is black, the death penalty is imposed 20 percent of the time.

"Every judge comes with a different perspective on life," said Carson City District Court Judge Michael Griffin. "An African-American judge would have a different perspective and a different humanity than I would."

The state's only two black district court judges are in Clark County. Three- judge panels include the trial judge and two judges from other counties. As a result, unless the defendant had one of the two black judges at his trial, he likely would have an all-white panel.

"If you get a white trial judge in Clark County you can never get a black judge on your panel," Pescetta said.

The committee, formed after the 2001 Legislature considered a number of different death penalty reforms and an outright moratorium, is looking at ways to provide more balance to the system.

Even death penalty supporters on the committee have said they favor reform. Nevada has the highest per capita Death Row population.

Victims' rights advocates testified Thursday that error rates and biases don't point to the guilt or innocence of the defendant.

"A lot of folks believe it's still the only option," said University of Nevada, Reno, criminal justice professor Matt Leone.