Death penalty changes sought

Erin Neff

Wednesday, Feb. 19, 2003 | 9:26 a.m.

CARSON CITY -- Defense attorneys asked lawmakers Tuesday to modify procedures to make the sentencing phase of death penalty cases "more fair."

Assembly Bill 14, introduced on behalf of an interim committee that studied the state's death penalty, would give the defense the last word in the penalty phase. It also would eliminate one of the aggravators and add a mitigating factor to the list that jurors can consider when determining whether to sentence a defendant to death.

The proposed change in the order or arguments "is all about fairness," Philip Kohn, a special public defender in Clark County, testified.

Currently, the prosecution argues first and last in the penalty phase. Kohn said because the defense has the burden to prove mitigating factors outweigh the aggravators, the defense should get the last word.

But Daniel Greco, a chief deputy district attorney in Washoe County, argued that the defense has "zero burden." And Assemblyman David Brown, R-Henderson, said he was not sure the order of argument would make any difference.

Scott Coffee, a Clark County public defender, said the change would matter when a defendant is fighting for his life in the penalty phase.

"When you walk into the penalty phase, irrespective of the legal burden of proof, there is a burden on the defense," Coffee said.

AB14 also would remove one of the current 14 aggravators prosecutors can use to seek the death penalty and would add an eighth mitigator the defense can use to offset the aggravators.

Attorney Michael Pescetta, who has numerous death row clients, said prosecutors have broadly interpreted some of the aggravators.

"There is practically no first-degree murder where the prosecutor can find no aggravator," Pescetta said.

The bill would strike the aggravator: "The murder was committed by a person who knowingly created a great risk of death to more than one person by means of a weapon, device or course of action which would normally be hazardous to the lives of more than one person."

Greco argued the aggravator was needed based on a 1998 trial he prosecuted involving a gang shooting in Reno. In that case, 17-year-old Brendan Taubert, shot a rifle into a crowd of rival gang members, killing one and injuring two others.

Taubert was convicted, but was not sentenced to death.

Coffee said Greco could still have used other aggravators, including one covering murders committed "at random, with no apparent motive."

Assemblyman John Carpenter, R-Elko, was concerned that removing the great risk of death aggravator could limit the prosecution in case of hijacked planes or bombs.

"In this day and age, it's very important to keep that in,' Carpenter said.

Pescetta said prosecutors could use the multiple-murder aggravator.

Brown has introduced a separate bill that would add an act of terrorism to the list of aggravators.

Pescetta warned lawmakers that they should carefully consider limiting that aggravator to proven acts of terrorism.

"Prosecutors will attempt to expand these aggravators by prosecuting them aggressively," Pescetta said.

The added mitigator would allow jurors to consider: "The defendant suffers from a mental illness or has a history of psychological disturbance."