Nevada

States to try new ways of executing prisoners. Their latest idea? Opioids.


December 11, 2017

The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions.

The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this spring as a backup method – something no state or country has tried. Officials have yet to say whether it would be delivered in a gas chamber or through a gas mask.

Other states have passed laws authorizing a return to older methods, such as the firing squad and the electric chair.

“We’re in a new era,” said Deborah Denno, a law professor at Fordham University. “States have now gone through all the drugs closest to the original ones for lethal injection. And the more they experiment, the more they’re forced to use new drugs that we know less about in terms of how they might work in an execution.”

Supporters of capital punishment blame critics for the crisis, which comes amid a sharp decline in the number of executions and decreasing public support for the death penalty. As of late November, 23 inmates had been put to death in 2017 – fewer than in all but one year since 1991. Nineteen states no longer have capital punishment, with a third of those banning it in the past decade.

“If death penalty opponents were really concerned about inmates’ pain, they would help reopen the supply,” said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates the rights of crime victims. Opponents “caused the problem we’re in now by forcing pharmaceuticals to cut off the supply to these drugs. That’s why states are turning to less-than-optimal choices.”

Prison officials in Nevada and Nebraska have declined to answer questions about why they chose to use fentanyl in their next executions, which could take place in early 2018. Many states shroud their procedures in secrecy to try to minimize legal challenges.

But fentanyl offers several advantages. The obvious one is potency. The synthetic drug is 50 times more powerful than heroin and up to 100 times more powerful than morphine.

“There’s cruel irony that at the same time these state governments are trying to figure out how to stop so many from dying from opioids, that they now want to turn and use them to deliberately kill someone,” said Austin Sarat, a law professor at Amherst College who has studied the death penalty for more than four decades.

Another plus with fentanyl: It is easy to obtain. Although the drug has rocketed into the news because of the opioid crisis, doctors frequently use it to anesthetize patients for major surgery or to treat severe pain in patients with advanced cancer.

Nevada officials say they had no problem buying fentanyl.

“We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, said in an email. “Nothing out of the ordinary at all.”

The state, which last put someone to death in 2006, had planned its first fentanyl-assisted execution for November. The inmate involved, 47-year-old Scott Dozier, was convicted of killing a man in a Las Vegas hotel, cutting him into pieces and stealing his money.

According to documents obtained by The Washington Post, Nevada’s protocol calls for Dozier first to receive diazepam – a sedative better known as Valium – and then fentanyl to cause him to lose consciousness. Large doses of both would cause a person to stop breathing, according to three anesthesiologists interviewed for this report.

Yet Nevada also plans to inject Dozier with a third drug, cisatracurium, to paralyze his muscles – a step medical experts say makes the procedure riskier.

“If the first two drugs don’t work as planned or if they are administered incorrectly, which has already happened in so many cases . . . you would be awake and conscious, desperate to breathe and terrified but unable to move at all,” said Mark Heath, a professor of anesthesiology at Columbia University. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move.”

John DiMuro, who helped create the fentanyl execution protocol when he was the state’s chief medical officer, said he based it on procedures common in open-heart surgery. He included cisatracurium because of worries that the Valium and fentanyl might not fully stop an inmate’s breathing, he said. “The paralytic hastens and ensures death. It would be less humane without it.”

A judge postponed Dozier’s execution last month over concerns about the paralytic, and the case is awaiting review by Nevada’s Supreme Court. In the meantime, Nebraska is looking toward a fentanyl-assisted execution as soon as January. Jose Sandoval, the leader of a bank robbery in which five people were killed, would be the first person put to death in that state since 1997.

Sandoval would be injected with the same three drugs proposed in Nevada, plus potassium chloride to stop his heart.

Even at much lower concentrations, intravenous potassium chloride often causes a burning sensation, according to Heath. “So if you weren’t properly sedated, a highly concentrated dose would feel like someone was taking a blowtorch to your arm and burning you alive,” he said.

Fentanyl is just the latest in a long line of approaches that have been considered for capital punishment in the United States. With each, things have often gone wrong.

When hangings fell out of favor in the 19th century – because of botched cases and the drunken, carnival-like crowds they attracted – states turned to electrocution. The first one in 1890 was a grisly disaster: Spectators noticed the inmate was still breathing after the electricity was turned off, and prison officials had to zap the man all over again.

Gas chambers were similarly sold as a modern scientific solution. But one of the country’s last cyanide gas executions, in 1992, went so badly that it left witnesses crying and the warden threatening to resign rather than attempt another one.

Lethal injection, developed in Oklahoma in 1977, was supposed to solve these problems. It triggered concerns from the start, especially because of the paralytic drug used. Even so, the three-drug injection soon became the country’s dominant method of execution.

In recent years, as access to those drugs has dried up, states have tried others. Before the interest in fentanyl, many states tested a sedative called midazolam – leading to what Supreme Court Justice Sonia Sotomayor called “horrifying deaths.”

Dennis McGuire, who raped and killed a pregnant newlywed in Ohio, became the first inmate on whom that state’s new protocol was tried. Soon after the 2014 execution began, his body writhed on the table as he gasped for air and made gurgling, snorting noises that sounded as though he was drowning, according to witnesses.

The same year, Oklahoma used midazolam on an inmate convicted of kidnapping and killing a teenager; authorities aborted the execution after Clayton Lockett kicked, writhed and grimaced for 20 minutes, but he died not long after. Three months later, Arizona used midazolam on Joseph Wood III, who was convicted of killing his ex-girlfriend and her father. Officials injected him more than a dozen times as he struggled for almost two hours.

Like officials in other states, Arizona officials argued that the inmate did not suffer and that the procedure was not botched. Later, they said they would never again use midazolam in an execution.

Joel Zivot, a professor of anesthesiology and surgery at Emory University, called the states’ approach ludicrous. “There’s no medical or scientific basis for any of it,” he said. “It’s just a series of attempts: obtain certain drugs, try them out on prisoners, and see if and how they die.”

The bad publicity and continuing problems with drug supply have sent some of the 31 states where capital punishment remains legal in search of options beyond lethal injection. Turning to nitrogen gas would solve at least one issue.

Nitrogen is literally in the air we breathe – you can’t cut off anyone’s supply to that,” said Scheidegger, who strongly supports the idea.

In addition to Mississippi, Oklahoma has authorized nitrogen gas as a backup to lethal injection. Corrections officials and legislators in Louisiana and Alabama have said they hope to do the same.

And yet, critics note, there is almost no scientific research to suggest that nitrogen would be more humane.

Zivot is among those skeptical that nitrogen would work as hoped.

“There’s a difference between accidental hypoxia, like with pilots passing out, and someone knowing you’re trying to kill him and fighting against it,” he said. “Have you ever seen someone struggle to breathe? They gasp until the end. It’s terrifying.”

Dozier, the inmate Nevada hopes to execute soon with fentanyl has said he would prefer death by firing squad over any other method. In more than a dozen interviews, experts on both sides of the issue expressed similar views.

Of all the lethal technology humans have invented, the gun has endured as one of the most efficient ways to kill, said Denno, who has studied the death penalty for a quarter-century.

“The reason we keep looking for something else,” she said, “is because it’s not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”

Advertisements

Attorneys seek to ensure Scott Dozier won’t be executed until 2018


December 5, 2017

A judge in Las Vegas kept a condemned prison inmate’s execution on hold Tuesday over concerns about a never-before-tried three-drug combination planned for use during Nevada‘s first execution in more than 11 years.

Clark County District Court Judge Jennifer Togliatti also said Tuesday that she wants to see written filings before she decides several other key issues.

With the Nevada Supreme Court expected to review the case and decide if Scott Raymond Dozier’s execution should go forward, Togliatti took no immediate action on a request by state and local prosecutors to reverse her Nov. 14 order halting the execution, which had been planned the same day.

State attorney general’s office lawyers say they’re drafting an appeal to the state high court of Togliatti’s order that the state Department of Corrections must remove a disputed paralytic, cisatracurium, as the third drug in a protocol using high doses of the sedative diazepam and the potent opioid fentanyl.

“You could have proceeded. He could be dead today,” the judge told attorney general solicitor Jordan Smith on Wednesday, noting that he said the state would appeal instead.

The judge added that she felt Supreme Court review of the three-drug cocktail will be important if the state wants to use it in future executions.

Togliatti canceled a Dec. 7 hearing, and made it clear that Dozier will have to wait at least several months for the execution he has said repeatedly he wants carried out.

She set a Jan. 17 hearing on a bid from the attorney general and Clark County district attorney’s offices to proceed using just diazepam and fentanyl. A medical expert witness called by federal public defenders challenging the case said those two drugs should be enough to kill the inmate.

She also is being asked to decide if federal public defenders should continue to represent Dozier in a review of the state’s proposed execution protocol.

Dozier, appearing by videoconference from Ely State Prison, did not say he wanted attorneys David Anthony and Lori Teicher to stop representing him.

Togliatti barely contained exasperation over what she termed “manipulation of the court process,” and asked the inmate if a flurry of filings in recent days meant he was asking for a “do-over” of the lengthy proceedings that began in July and required almost daily action in the run-up to the scheduled execution date.

Dozier called the months of hearings that made his case a topic of national interest “vital,” noted that they led to revisions of the protocol, and said he feels now “like I had to take a less-than-ideal option because that was the only option available.”

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas.

Jonathan VanBoskerck, a chief Clark County district attorney, has said that local prosecutors have an interest in seeing the penalty that Togliatti imposed 10 years ago carried out. He said Tuesday that other arguments are irrelevant since Dozier is not challenging his sentence or the process.

“The bottom line is it’s his choice,” VanBoskerck told the judge.

 

RELATED | Condemned inmate Scott Dozier complains of death penalty delay

 

16 last meal requests from Nevada’s death-row inmates


Convicted murderer Scott Dozier is scheduled to be executed Nov. 14, 2017, the first execution in Nevada in 11 years.  (STAYED)

He will be able to request a last meal, provided it can be prepared at Ely State Prison; no outside food can be brought in.

Below are the last meal requests of prisoners executed in the state of Nevada since July 1954.

Steak
Leroy Linden, executed July 15, 1954 for the murder of Clarence Dodd.

Salami, roquefort cheese and anchovies
Frank Pedrini, executed July 15, 1954 for the murder of Clarence Dodd.

Steak and chocolate ice cream
Earl Lewis Steward, executed Feb. 24, 1960 for the murder of Thomas Jessen.

Chicken, vegetable soup, cherry pie, cheese and coffee
Thayne Archibald, executed Aug. 21, 1961 for the murder of Albert Waters.

Filet mignon, tossed salad with Thousand Island dressing, asparagus, baked potato with sour cream and an unspecified dessert
Jesse Bishop, executed Oct. 22, 1979 for the 1977 murder of David Ballard.

Jumbo shrimp, french fries, tossed salad with French dressing, clam chowder, cookies and candy
Carroll Cole, executed Dec. 6, 1985 for the 1979 murder of Marie Cushman.

Four double bacon cheeseburgers, french fries and a large Coke
William Paul Thompson, executed June 19, 1989 for the 1984 murder of Randy Waldron.

Pepsi
Sean Patrick Flanagan, executed June 23, 1989 for the 1987 murders of James Lewandowski and Albert Duggins.

Pizza with anchovies, apple pie, chocolate ice cream, jelly doughnuts and soft drinks
Thomas E. Baal, executed June 3, 1990 for the 1988 murder of Frances Maves.

Lasagna, chicken Parmesan, salad and ice cream
Richard Allen Moran, executed March 30, 1996 for the 1984 murders of Sandra Devere, Russell Rhodes and Linda VanderVoort.

No special request — standard inmate meal
Roderick Abeyta, executed Oct. 5, 1998 for the 1989 murder of Donna Martin.

Steak, rice, corn, applesauce and a Sprite
Alvaro Calambro, executed April 5, 1999 for the 1994 murders of Peggy Crawford and Keith Christopher.

Crab salad, French bread, 4-ounce lobster tail, mango, cheesecake, vanilla ice cream and aloe juice
Sebastian Stephanous Bridges, executed April 21, 2001 for the 1997 murder of Hunter Blatchford.

Cheeseburger with onions, pickle and tomatoes; french fries; three slices of pepperoni pizza; one pint each of vanilla, chocolate and chocolate chip ice cream; apple; banana; orange; a 20-ounce Coke and a 20-ounce Pepsi
Lawrence Colwell Jr., executed March 26, 2004 for the 1994 murder of Frank Rosenstock.

Two cheeseburgers and a Coke
Terry Jess Dennis, executed Aug. 12, 2004 for the 1999 murder of Ilona Straumanis.

Fish sandwich, french fries and lemon-lime soft drink
Daryl Mack, executed April 26, 2006 for the 1988 murder of Betty Jane May.

Nevada Condemned Inmate Complains of Death Penalty Delay


November  21,2017

 

Nevada death row inmate Scott Dozier appears in a Las Vegas court via video on Wednesday, Nov. 8, 2017, days before his scheduled execution. From the state prison in Ely, where he is scheduled to be executed on Tuesday, Dozier, 46, told Clark County District Court Judge Jennifer Togliatti one last time that he wants his death sentence carried out. (Michael Quine/Las Vegas Review-Journal) The Associated Press

 The Nevada death row inmate whose execution was postponed last week is complaining to a judge that he’s suffering what he calls an open-ended and unnecessary delay.

State prisons spokeswoman Brooke Keast said Tuesday that Scott Raymond Dozier (DOH’-sher) was returned to suicide watch on Nov. 14, the day he had been scheduled to die by lethal injection at Ely State Prison.

Dozier turned 47 on Monday.

He has volunteered die, and would become the first person executed in Nevada since 2006.

Court documents show that he sent a Nov. 13 letter asking Clark County District Court Judge Jennifer Togliatti to lift a stay of execution that she issued over concerns about the three-drug cocktail that prison officials want to use.

The matter is now destined for review by the Nevada Supreme Court.

 

Nevada pursues death chamber, controversial drug


Monday, July 13, 2015

Nevada has no executions on the immediate horizon but is pushing ahead to build a new death chamber at Ely State Prison and would use a drug at the heart of a recent U.S. Supreme Court case to carry out lethal injections.
Brian Connett, deputy director at the Nevada Department of Corrections, said department lawyers were reviewing the June 29 decision over the use of midazolam in Oklahoma executions “to determine what, if any, impact it may have on Nevada.”
“Nevada would use the drugs midazolam and hydromorphone to administer a lethal injection and has an adequate supply of these drugs to carry out an execution if ordered,” he said in an email.
But death penalty watchdogs said use of the drug almost assuredly would spawn lawsuits after highly publicized incidents of botched executions.
Three Oklahoma death row inmates sued after that state first used midazolam last year in the execution of Clayton Lockett. Witnesses reported Lockett writhed, gasped and moaned. Prison officials tried to halt the execution process, but Lockett died after 43 minutes.
Midazolam, an anti-anxiety drug, is intended to put inmates in a comalike state before other drugs to bring about death are administered. Critics argue it does not guarantee unconsciousness to avoid pain from the subsequent drugs.
Similar prolonged executions using midazolam occurred in Ohio and Arizona in 2014.
LETHAL DRUG RULING
In its 5-4 decision, the Supreme Court said the use of midazolam does not violate Eighth Amendment protections against cruel and unusual punishment. The majority also noted that midazolam had been used in other executions about a dozen times without complications.
About 10 days later, Oklahoma set new execution dates in September and October for the 3 inmates who challenged the use of the drug.
A 2-drug injection of midazolam and the painkiller hydromorphone, the same combination planned for use by Nevada, was 1st used for lethal injection by Ohio in January 2014. Witnesses said that it took about 25 minutes for condemned killer Dennis McGuire to die and that during the process he made loud snorting or choking noises while his midsection convulsed.
Rob Dunham, executive director of the Death Penalty Information Center, a Washington-based nonprofit group, said the court’s decision doesn’t settle the question over midazolam’s use.
“That doesn’t mean that there will not be challenges to midazolam elsewhere,” he said.
Dunham said that while justices found the Oklahoma inmates didn’t meet their burden of proof to halt the use of the drug, “it doesn’t mean that midazolam is constitutional.”
He said a state “that is concerned about the execution process would have serious doubts about using midazolam.”
The last execution in Nevada was April 26, 2006, at the now-shuttered Nevada State Prison in Carson City. Daryl Mack was executed for the 1988 rape and murder of Betty Jane May in Reno.
Starting at least 11 years ago and up through Mack’s execution, Nevada used a combination of pentobarbital, pancuronium bromide and potassium chloride in its execution protocol. But Nevada and other states have been pressed to find alternatives after death penalty opponents pressured manufacturers not to sell them for executions.
Nevada has executed 12 inmates since the U.S. Supreme Court reinstated capital punishment in 1976. About 80 men are on Nevada’s death row.
NEW DEATH CHAMBER
Besides the issue of lethal drugs, Nevada is building a new death chamber at Ely State Prison after Nevada State Prison, where executions were conducted, closed in 2012.
Less than a week after Gov. Brian Sandoval signed a capital improvement bill on June 15 that included $860,000 to remodel a prison administrative building into a new death chamber, the state Public Works Board published a notice seeking statements of qualifications from architectural and engineering firms to perform the work.
The deadline for submitting those statements was Thursday, and it is unclear how many were submitted. The prison project was one of dozens of maintenance projects approved by state lawmakers for the next 2 years.
State lawmakers, who rejected funding for a new execution chamber in 2013, approved the expenditure this year despite reservations about the cost and lingering uncertainty over the death penalty.
San Quentin's brand new, costly - and still unused - death chamber
San Quentin’s brand new, costly – and still unused – death chamber
Critics have called the new execution chamber “an outrageous boondoggle.”
“This proposed new facility may sit unused forever, or it could require further remodeling if lethal injection is rejected in court,” Nancy Hart, president of the Nevada Coalition Against the Death Penalty, and Tod Story, executive director of the American Civil Liberties Union of Nevada, wrote in a May 27 opinion piece.
“Even if lethal injection is upheld, there are serious doubts about the availability of the lethal drugs needed for an execution,” they wrote.
Plans call for remodeling 1,900 square feet of visitation and courtroom areas of an administrative building at the Ely Prison to accommodate an execution chamber.
During legislative hearings, Chris Chimits, deputy administrator with the state Public Works Board, said the chamber would be modeled after California’s San Quentin State Prison execution facility, the construction of which was overseen by the 9th U.S. Circuit Court of Appeals.
Mary Woods, spokeswoman for the Nevada Department of Administration, said a design contract could be presented to the Board of Examiners for approval in November.
After that, the design, permitting and construction process is expected to take about a year.

 

Death penalty upheld for man in Las Vegas hammer killings – Thomas Richardson


November 14, 2012 http://www.lasvegassun.com

ARSON CITY — The Nevada Supreme Court, in a 5-2 decision, has upheld the murder conviction and death penalty sentence for Thomas Richardson in the hammer slaying and robbery of two people in Las Vegas.

Richardson and Robert Dehnart agreed in September 2005 to rob and murder Steve Folker, who was at the home of Estelle Feldman, also killed with hammer blows to the head, records show.

Dehnart, who was the 18-year old son of Richardson’s girlfriend, agreed to testify against Richardson as part of a plea deal. He was sentenced to 20 to 50 years for first-degree murder and a consecutive 4 to 30 year term for robbery.

Chief Justice Michael Cherry dissented in the ruling, saying evidence against Richardson “was not overwhelming” and errors at trial required the conviction be overturned and a new trial ordered. Justice Nancy Saitta agreed with Cherry.

Richardson maintained he was in California at the time of the murders.

But the court’s majority opinion said the trial testimony of Dehnart “is sufficiently corroborated,” and substantial evidence supports the jury verdict.

The court said District Court Judge Michelle Leavitt was wrong in not permitting the defense in closing arguments to maintain Dehnart was lying to receive a lighter sentence.

But the court called it harmless error.

Cherry, in his dissent, said defense attorneys should have been allowed to argue that Richardson had returned to California before the time of the murder.

“As there was conflicting evidence of this crucial fact and no physical evidence placing Richardson in the home or even in the state at the time of the murders, (defense) counsel’s argument became much more vital to the defense,” Cherry wrote.

Cherry also wrote that evidence at the crime scene was mishandled, and a replica of the hammer used in the killing should not have been introduced at the trial.

Man sentenced to death for murder at Caesars Palace – Bryan Hall


November 9, 2012 http://www.ktnv.com

Las Vegas,  — Bryan Hall appeared in court Friday to find out if he could face the death penalty for killing a waiter at Caesars Palace.

Family and friends of the victim, Brad Flamm, gathered in the courtroom at the Regional Justice Center for the decision.

It was an emotional morning as both attorneys argued the pros and cons of the death penalty in the case.

Just a few hours later, the jury reached a verdict that Hall will face death as punishment for his conviction.

Hall was convicted of murdering Flamm earlier in the week.

Flamm’s family was visibly satisfied when the decision was read in court.

“We’re just glad justice is done. This guy won’t hurt anyone ever again,” said Flamm’s father, Fred. “He’s put away, and he’s not going to be with us anymore. Hopefully the sooner the better.” 

Hall and Flamm had been friends, but police said they got into an argument over a woman they both dated.

In May 2009, Flamm’s body was found by a loading dock outside Caesars Palace. He had been beaten and strangled.

Flamm’s mother said it was hard to see him in court, but harder to see him at the county jail, where she happens to work.

“But now he won’t be there,” Jennifer Flamm said. “I won’t have to go into work and worry about him being there.”

The Flamm family is happy to be able to now move forward, keeping Brad’s spirit alive.

“Brad lives on in our hearts,” Fred Flamm said. “We miss him, but he’s still there.”

Hall will return to court for a formal sentencing on January 17.

Nevada Department of Corrections lacks plan for executions due to prison closure, drug shortage


may 10, 2012 source : http://deathpenaltynews.blogspot.com

4 months after shutting down Nevada State Prison in Carson City, site of the state’s only death chamber, officials have no solid plan for carrying out executions and no access to a lethal injection drug.
As Nevada’s death row inmates continue to appeal their convictions and sentences, the Nevada Department of Corrections has continued to lose its ability to hold an execution.
Corrections officials shut down the Nevada State Prison in Carson City, site of the state’s only death chamber, early this year, and they have no solid plan in place for transporting and holding an inmate who is about to be executed, the Reno Gazette-Journal found.
In addition, 1 of the drugs used during a lethal injection has not been available for more than a year, and the state’s execution protocol has not been updated to address the drug shortage, the Gazette-Journal found.
The department plans to submit a bill draft request to the Legislature next year asking for $385,000 to build a new execution chamber at the Ely State Prison, said Steve Suwe, a department spokesman.
The Nevada Attorney General’s office sent a letter to U.S. Attorney General Eric Holder early in 2011 seeking help to deal with the lethal injection drug shortage, spokeswoman Jennifer Lopez said. But no resolution has been found.
“Should any executions be scheduled, we will do the best to help the Department of Corrections have the drugs necessary to carry out a lawful execution order,” Lopez said.
Richard Dieter, executive director of the Death Penalty Information Center, said the lack of a solid plan could be problematic, especially if an inmate were to suddenly stop the appeals process and ask to be killed. Eleven of the 12 inmates executed in Nevada since 1976 “volunteered” to be executed.
“When it comes time, they just can’t say, ‘Trust us,’” Dieter said of corrections officials. “They have to have a very specific protocol. Either a state or federal court would want them to produce that information. They’ll want to make sure this isn’t done in a slipshod way.”
Source: Reno Gazette-Journal, May 10, 2012

NEVADA – Nevada court reviews death penalty sentence of convicted killer


May 7, 2012 Source http://www.lasvegassun.com

A convicted killer does not have to show by a preponderance of the evidence that he does not deserve a death sentence, a defense lawyer says.

John R. Petty of the Washoe County public defender’s office told the Nevada Supreme Court that it should nullify the death penalty given murderer James Biela because a wrong instruction was given to the jury during the penalty phase of the trial in Reno.

But Terry McCarthy of the Washoe County district attorney’s office said each juror makes his or her own decision. And the death penalty should be upheld.

But Justice Kristina Pickering said there could be confusion in the jury instruction.

On Jan. 20, 2008, 19-year-old Brianna Dennison disappeared while sleeping on the couch of the home of a friend in Reno. Her body was found Feb. 15 in a field. She had been raped and strangled with a pair of thong panties.

Petty, the chief appeal deputy in the public defender’s office, said the jury was wrongly instructed that the mitigating circumstances must outweigh the aggravating circumstances to eliminate the possibility of the death penalty.

But Justice Michael Douglas noted the defense at the trial never objected to the jury instruction. Nor did the defense attorney argue against it in his closing argument.

But Petty said the court should either grant a new penalty hearing or reduce the death sentence to life in prison without the possibility of parole.

Deputy District Attorney McCarthy told the court there was no requirement at trial that the death penalty be imposed. He said it was a moral judgment by the juror.

In his brief to the court, McCarthy quoted the instruction as saying, “If you find unanimously and beyond a reasonable doubt that at least one aggravating circumstance exists and each of you determines beyond a reasonable doubt that any mitigating circumstance do not outweigh the aggravating, the defendant is eligible for a death sentence.”

The court took the arguments under submission.

Biela is one of 82 men on death row in the state prison in Ely.

There has not been an execution by lethal injection in Nevada since Daryl Mack was put to death on April 26, 2006.