Death penalty reform debated

Erin Neff

Thursday, Feb. 13, 2003 | 9:30 a.m.

CARSON CITY -- The Legislature dabbled with death penalty reform throughout the 2001 session and then appointed a special committee to pore over testimony for another year.

But the Clark County district attorney's office waited until Wednesday to suggest its own remedies to make Nevada law conform with two U.S. Supreme Court decisions.

"I apologize for coming late to the dance," Clark Peterson, chief deputy district attorney and capital case coordinator, said.

But Assembly Judiciary Committee leaders were not too pleased with Peterson's proposed last-minute amendments to bills that would prohibit the death penalty for defendants who are mentally retarded and abolish three-judge panels, which decide the penalty phase of a trial in some cases.

"I was on this interim committee for all of those months of meetings," said committee Vice Chairman John Oceguera, D-North Las Vegas. "I don't recall seeing you there."

Committee Chairman Bernie Anderson, D-Sparks, later said Peterson's best move was giving the proposed amendment to the study committee's chairwoman, Sheila Leslie, D-Reno, one day before the hearing as a courtesy.

But Assembly Majority Leader Barbara Buckley, D-Las Vegas, added: "It might have been a better move to bring it up to the committee."

Peterson said he did not object to efforts to change Nevada law to conform with the two U.S. Supreme Court decisions, he just disagreed with how the interim legislative committee determined the changes should be made.

Assembly Bill 15 establishes a procedure for defense attorneys to declare that a client is mentally retarded and prohibits a sentence of death for someone with an IQ of 70 or lower.

Leslie said she was not committed to a "bright line" definition at 70, and suggested the Judiciary Committee instead use the American Association on Mental Retardation's 2002 definition of mental retardation.

Brian Lehrer, a behavioral scientist working with the Washoe Association of Retarded Persons, testified that even someone with a 71 or 72 IQ might have "a pervasively compromised intellectual status."

The Supreme Court, in Atkins vs. Virginia, ruled 6-3 that executing mentally retarded people violated the Constitution's prohibition against cruel and unusual punishment.

Peterson's proposed amendment would define mental retardation the same way the state of Nevada does in its health statutes in laws that provide for benefits and services for mentally retarded citizens. It would also place determination of mental retardation into a process like the current competency hearing.

Peterson also objected to AB15 because it would apply to all first-degree murder cases, and not just those in which the death penalty is sought.

Several committee members expressed concerns with a section of the bill that would permit a hearing between the judge and the defendant and his counsel without the prosecution's presence.

"It almost seems that the defense is able to tailor the information to the judge," said Assemblyman David Brown, R-Henderson, who is a lawyer.

Buckley, also an attorney, asked whether proponents of the bill would accept an amendment to allow the prosecution access to such a hearing. They stated they would not object.

Michael Pescetta, an assistant federal public defender who has numerous death row clients, said there are currently two condemned inmates in Nevada with mental retardation.

Nevada has for years allowed three-judge panels to decide whether a convicted person will be put to death when a jury is unable to choose a life or death sentence. The Supreme Court in Ring vs. Arizona ruled that juries, not judges, must consider aggravating factors in sentencing hearings. Assembly Bill 13 would bring Nevada into compliance with that ruling by eliminating the state's three-judge role in the deadlocked jury cases.

Pescetta said the bill must be amended to include cases in which a defendant pleads guilty and waves a jury trial on the charges. Guilty pleas also go to three-judge panels.

The panels are not only in conflict with the Supreme Court's ruling, but are statistically more prone to sentence a defendant to death, according to testimony.

Pescetta said the panels impose death 75 to 80 percent of the time when all three judges are white and just 20 to 25 percent of the time when one of the judges is black.

Attorney JoNell Thomas testified from Las Vegas that one of her death row clients, Dorian Daniel, is appealing his death sentence based on the grounds that the jury was deadlocked between life with or without parole and the judge panel sentenced him to death.

Peterson, who is handling that appeal for the DA's office, disputed Thomas' claim, saying that some jurors voted for death, some for life without and one for life with parole.

The proposed bill would eliminate the judge panel and give the trial judge the option of impaneling a new jury for a second penalty phase or simply imposing a sentence of life without the possibility of parole. The bill also requires prosecutors and district courts to report statistics on death penalty cases, including the race of both the suspect and victim.

Peterson, however, said the bill sets up a "one and done" scenario.

He mentioned the case of Donte Johnson, convicted in the 1998 execution-style killings of four young men.

One juror in Johnson's penalty phase, whom Peterson called "a rogue juror" would not impose the death penalty. A three-judge panel imposed a death sentence, which the Nevada Supreme Court overturned late last year after the Supreme Court's decision.

A second sentencing trial was ordered in Johnson's case.

Peterson erroneously said the proposed bill would never allow a death sentence for Johnson, so he proposed giving the defendant the option of a new jury or a three-judge panel. Howard Brooks, a Clark County public defender and president of Nevada Attorneys for Social Justice, pointed out to lawmakers that the premise for Peterson's argument was false.