Friday, July 28, 2006 | 7:46 a.m.
The veteran defense lawyer never thought he'd be so happy to see a client get convicted of second-degree murder.
As the verdict was announced last week, Deputy Public Defender Scott Coffee bowed his head and took a deep breath. He smiled as he clapped his client, Arie Redeker, on the shoulder.
Redeker, convicted in the 2002 killing of his girlfriend, Skawduan Lanna, had escaped death row, a possibility that loomed had he been convicted of first-degree murder. Instead, he now faces 20 years to life in prison.
"From the day it landed on my desk," Coffee says, "I knew this wasn't a death penalty case."
When prosecutors charge someone with first-degree murder, they must also confront a crucial decision: Should the defendant face the death penalty if convicted? The Clark County district attorney's office uses an in-house panel - the Death Penalty Assessment Committee - to weigh such life and death decisions.
Until now, little has been known publicly about how the committee functions, including who serves on it. The district attorney's office and defense lawyers have waged numerous court battles in the past over what prosecutors say is their right to conduct their decision-making in private and without explanation. But that penchant for secrecy has spawned a raft of concerns.
The committee's decisions seem arbitrary, say some defense lawyers, who also say defendants are routinely "overcharged" with the death penalty to give prosecutors a better negotiating position in court.
"I've been doing this work for 10 years, and I still can't predict which cases are going to become death cases," defense attorney JoNell Thomas says. "My experience is that they often will file a death penalty notice as a plea-bargaining tool."
Perhaps worst of all, defense lawyers say, District Attorney David Roger and his top aides have expressed no interest in letting them present the panel with reasons their clients should not be pursued for death.
Says Special Public Defender David Schieck: "They've told us to go pound sand."
But Roger and his top criminal prosecutor, Assistant District Attorney Christopher Lalli, say there has been an open offer for defense attorneys to make their case before the committee but that they always have declined because they don't want to disclose too much about their case before trial.
Schieck rebuts the notion of the committee's openness by pointing to a case in which one of his assistants tried to get the committee to reconsider its decision and allow vital mitigating evidence - and was flatly refused.
Both Schieck and Curtis Brown, chief deputy Clark County public defender, say Roger has refused to establish a policy regarding defenders' participation. Defenders aren't advised of when the meetings take place, for example, and haven't known, as Roger suggests, that they could address the committee , defense lawyers say.
"If they're now saying it's something we're allowed to do, that's great," Brown says. "I'll take advantage of it."
The whole purpose of the committee, say Roger and Lalli, is to make the process of reaching decisions less arbitrary. They say they only pursue the death penalty for the defendants who truly deserve it - those characterized by the U.S. Supreme Court as "the worst of the worst."
Roger adds that criticism from defense attorneys should be viewed with skepticism: "These are people who are opposed to the death penalty on constitutional, legal and moral grounds."
And the claims of overcharging? "That's immoral, and it's not something we engage in," Lalli says.
The committee was formed in 1995 by former District Attorney Stewart Bell in an effort, he says, to make the process "fairer and more consistent."
Prior to its formation, the individual prosecutor assigned to a murder case would decide whether to pursue the death penalty, says Bell, now a District Court judge.
Roger and Lalli say the process now begins after the defendant is indicted or charged with murder. The deputy district attorney handling the case then fills out an assessment form, which includes the defendant's criminal history and the perceived overall strengths and weaknesses of the case. State law gives prosecutors 30 days after charges are levied to file a notice to seek the death penalty.
Cases are brought before the committee, they say, only if the deputy finds any "aggravating factors" - special circumstances that state law says must exist for prosecutors to file a death-penalty notice. Those circumstances can include such factors as committing a murder while already in prison or on probation; while committing a robbery; or killing a policeman in the line of duty.
Copies of the assessment then go to committee members, who study it before meeting. In addition to the six regular members - Roger; Lalli; Chris Owens, head of the major violators unit; Steve Owens, the capital case coordinator; Jim Tuftland, the chief appellate division attorney; and Ron Bloxham, head of the office's case assessment unit - the prosecutor handling the specific case also attends the meeting.
The committee averages two or three meetings a month. Some are brief and others can take several hours or longer, depending on how many cases are up for review, how complex they are, and how much disagreement there may be. Roger will not say whether the committee's decisions need to be unanimous.
The committee examines the aggravating factors involved, he says, and considers the likelihood of a jury imposing the death penalty and whether the case would hold up on appeal.
Statistics provided by Roger's office show that since he took office in January 2003, through June 8 of this year, the committee has approved filing death-penalty notices in 53 of the 145 cases they reviewed - or 37 percent of the time.
A higher percentage of such notices were filed from 1997 to 2002, under Bell. In those years, 79 of 151 cases - or 52 percent - were approved for a death-penalty notice.
Prosecutors could not provide the names of the 53 defendants they approved the death penalty for, but District Court officials provided a list that showed 49 death-penalty cases filed by prosecutors since 2003.
Thirty of those cases still await trial , and eight defendants pleaded guilty to avoid the possibility of a death sentence.
In the remaining 11 cases, the defendants were found guilty, but only two were sentenced to Nevada's death row. The majority of the others were sentenced to life in prison without the possibility of parole.
Defense lawyers say these numbers confirm their notion that prosecutors seek the death penalty far too often.
Critics say they also suspect that a larger-than-average percentage of minority defendants are finding their way onto death row here.
Assistant Federal Public Defender Michael Pescetta, considered among Nevada's top death-penalty experts, says part of the problem is the composition of the committee. It hasn't had a black member, he says, since Johnnie Rawlinson left the district attorney's office in 1998 to become a federal judge.
"If you have a white victim, they appear more likely to see that as a death case because that's the kind of victim they can identify with," Pescetta says.
In the 49 cases provided by the District Court, the race of the defendants could not be determined, and prosecutors said they could not provide those statistics.
According to a Nevada Supreme Court report, district attorney's offices reported that in 2003, 33 blacks and 30 whites were accused of committing murder or voluntary manslaughter. The race of 28 defendants was reported as "unknown" for that year.
In 2004, 25 blacks and 48 whites were charged with murder or voluntary manslaughter, according to the report. The race of 29 defendants was reported as "unknown."
The Death Penalty Information Center in Washington pegs the current death-row population in Nevada at 81, ranking 13th of the 38 states that have a death penalty. There have been 12 executions in the state since the death penalty was reinstated in 1973.
Of those 81 death row inmates , 31 are black, 41 are white, eight are Hispanic and one is Asian, according to a spring 2006 report by the NAACP Legal Defense and Educational Fund.
Brown, of the public defender's office, says the race factor is obvious in certain Clark County cases.
Why, for example, didn't prosecutors seek the death penalty for Sandy Murphy and Rick Tabish in the Ted Binion murder case, when there were four aggravating circumstances surrounding the killing?
"What is it about them - other than they were rich, attractive white people - that made them ineligible for the death penalty?" Brown asks.
Roger declines to talk about the Binion case but insists both he and his committee are colorblind: "It means absolutely nothing to me, as far the race of the victim or the defendant."
Meanwhile, defense lawyers point to cases in which they say their client, black or white, was unjustly targeted for the death penalty.
Roger says he will not talk about the reasons the committee decided the defendants in those cases should be pursued for death, in part because all are ongoing.
Deputy District Attorney Robert Daskas, one of two prosecutors assigned to the Redeker case, says he had no quarrel with the jury's verdict.
But he argues that all three of the elements for first-degree murder existed in Redeker's case - premeditation, deliberation and willfulness - and that the district attorney's office correctly sought death in the case.
After the verdict, jurors said that a majority of them immediately thought Redeker deserved only a second-degree murder conviction and that majority grew during the several hours of deliberation. All but two jurors eventually voted for second-degree murder.
One of the jury's majority, identified only as Chuck, said in the end it was clear that although Redeker deserved harsh punishment, he shouldn't die for his crime.
"This is a guy who wasn't a cold-blooded killer," the juror said. "He didn't deserve to be up for the death penalty."
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