Reforms in death penalty likely to include DNA rules

Erin Neff

Thursday, June 13, 2002 | 9:12 a.m.

The Sub-Committee to Study the Death Penalty and Related DNA Testing will meet Friday at 11 a.m. in the Legislative Building in Carson City. The meeting can be seen live in Las Vegas in room 4401 of the Sawyer State Building, 555 E.Washington Ave., or heard live on the Internet at www.leg.state.nv.us by clicking on the listen to live meetings icon.

Lawmakers will examine 32 possible reforms to Nevada's death penalty system Friday, but it is likely only a few will have enough political support to result in changes to the law.

The Legislative Commission's Subcommittee to Study the Death Penalty and Related DNA Testing will decide Friday in Carson City which reforms to recommend to the full Legislature.

The first two recommendations -- abolishing the death penalty and establishing a moratorium on executions pending further study -- might get some support from committee members Friday, but won't get enough to draft proposed legislation.

However committee chairwoman Assemblywoman Sheila Leslie, D-Reno, said she thinks the testimony the panel heard about biases, rules of procedure and DNA evidence will result in some reforms.

"I think elimination of the three-judge panel is definitely up for discussion," Leslie said. "And I think there is common ground on DNA testing."

Nevada law states that if a jury cannot reach a decision during the penalty phase of a capital case, a three-judge panel decides life or death. Nevada is the only state in the nation to use three-judge panels in those cases, and opponents of the death penalty cited alarming statistics related to that practice.

If the panel contained three white judges, the death penalty was imposed 80 percent of the time. If one of the three judges was black -- which is sometimes the case in Clark County -- the death penalty was imposed 20 percent of the time, according to testimony.

Public defenders Michael Pescetta and JoNell Thomas proposed reforms that would allow the court to impanel a new sentencing jury if the jury is deadlocked during the penalty phase, or would require the judge to impose a sentence of life without the possibility of parole.

"I don't think there's even any debate there," Thomas said. "We really should eliminate the three-judge panels."

Barry Scheck, one of O.J. Simpson's defense attorneys, testified at one of the committee's prior meetings about the importance of DNA testing to both exonerate the innocent and help law enforcement find the guilty party.

Even staunch death penalty supporters favor amending state law to ease the introduction of genetic testing in capital cases.

"In any capital case that we're trying, where there's the possibility to introduce DNA testing, the state should pick up the cost of introducing the tests," said Assemblyman Dennis Nolan, R-Las Vegas, a member of the committee.

During the 2001 Legislature, Leslie sponsored legislation that would eliminate the death penalty in cases where the defendant is mentally retarded. Her bill cleared the Assembly with support from even capital punishment supporter and police captain Richard Perkins, D-Henderson, but the Senate Judiciary Committee never held a hearing on the bill.

At the time Senate Judiciary Committee Chairman Mark James, R-Las Vegas, was proposing a moratorium on executions pending a study of the issue. Since the moratorium had no support in the Assembly, many believe he sat on Leslie's bill, which had the political support to pass.

"Certainly the mental retardation bill from the last session would suggest that the Legislature may be interested in doing something about that," said Pescetta, a federal public defender who represents a death row client with alleged mental retardation.

Leslie said that she hopes there is support to prohibit a death sentence from being imposed on mentally retarded defendants or on defendants who are under 18 at the time of the crime. State law currently allows 16-year-olds to be sentenced to death.

Pescetta said he "wouldn't bet a nickel" on which reforms lawmakers will support, but added that "there are a lot of fairly modest things that would do something to make the death penalty system less offensive."

During the committee's five previous meetings, opponents of the death penalty provided the bulk of testimony, with prosecutors and victims' families given time to rebut or offer their own perspectives.

None of the 32 recommended reforms came from prosecutors or victims' advocates.

Ron Cornell, president of Families of Murder Victims, said his group does not take stands on death penalty issues, although individual members might have ideas for reform.

"There are members of our group who would rather see somebody be in prison and be somebody's girlfriend for the rest of his life," Cornell said.

Cornell said he personally believes public defenders should be paid more and should face some type of accountability panel to increase the quality of counsel, and thus, reduce appeals on the grounds of an incompetent attorney.