DA opens the door to defense partway

Sam Skolnik

Thursday, Dec. 21, 2006 | 7:20 a.m.

Before this summer, local prosecutors made some of their most sensitive decisions - those involving whether to pursue the death penalty for murder defendants - in secret and without any input from defense lawyers.

That's changing. Since August, the Clark County district attorney's office has allowed defenders into their offices at least seven times to argue that their clients should not face death if convicted.

Public defenders for years have been trying to open up the process. They've even petitioned the Nevada Supreme Court to contend they had a right to know what factors prosecutors used when making such decisions - and that they should be involved before prosecutors made their determination.

Defense attorneys say they are relieved. Their clients, as well as the justice system , are better served by the recent efforts to include them, they say. But they add that they don't really know whether their presentations ultimately are making much of a difference.

"This is an improvement. It's definitely a first step in the right direction," Special Public Defender David Schieck says. "But we still don't know what factors they use when they make their decisions."

A July story in the Sun shed new light on the workings of the district attorney's Death Penalty Assessment Committee, including charges that its decisions seemed arbitrary, and that defendants regularly had been charged with the death penalty only to give prosecutors a better negotiating position in court.

District Attorney David Roger and his top criminal prosecutor, Assistant District Attorney Christopher Lalli, responded that the purpose of the committee was to make the whole process less arbitrary. They also said there has been an open offer for defense attorneys to make their case before the committee, but that they had always declined for fear of disclosing too much about their case.

Defenders responded that they never knew of such a welcome and had been effectively shut out.

According to prosecutors, if the deputy district attorney handling the case finds any "aggravating factors" - special circumstances that state law says must exist for prosecutors to file a death penalty notice, such as committing a murder while already in prison or on probation; or while carrying out a robbery - the case is brought before the committee.

The committee's roughly half-dozen members weigh the aggravating factors, Roger has said, as well as the likelihood of a jury imposing the death penalty and whether the case would hold up on appeal.

From January 2003 through June 8, the committee approved filing death penalty notices in 53 of the 145 cases it reviewed, according to statistics provided by Roger's office.

Of the seven cases since August in which defense lawyers have addressed the committee, prosecutors have filed death penalty notices three times. They decided not to pursue the death penalty in two other cases and are still weighing the remaining two.

In some cases, defense lawyers said they used their presentations to show evidence that their clients suffered mental illnesses that caused them to commit the crime, or that they had acted in self-defense - legal justifications, they argued, that their clients shouldn't be prosecuted for the death penalty.

They noted, however, that the newfound opportunity presents risks. They said they need to be careful not to divulge too much information about their case, lest they hurt their chances at trial.

In a case involving Stephen Ressa, the 28-year-old accused of driving his car onto a Strip sidewalk in September 2005 and killing three people, Ressa's attorney said that committee members took just one day after he had addressed them three months ago to file a death penalty notice.

"To be quite honest, I have no idea whether they had already made their minds up or whether they wanted to give the illusion of transparency," Deputy Public Defender Joseph Abood said.

Roger declined to comment, other than to say that he and the committee appreciated the input from defense lawyers.

Curtis Brown, chief deputy public defender, said his staff is now "front-loading" investigations to prepare for meetings with prosecutors.

Years of built-up mutual distrust between prosecutors and defenders are hard to overcome, Brown said. But he also said he's hopeful that the process will continue to evolve.

For now, though, Brown said, "all we're asking from them is to give us an honest, honest listen."