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Treading death

Nevada's new execution chamber at Ely State Prison. Courtesy: Nevada Department of Corrections.

In 1977, after the Supreme Court cleared the way for states to once again allow the death penalty after a brief existential time-out over abuses, the Legislature jumped on board. As long as a state narrowly tailored who would be eligible for this ultimate, irreversible punishment and only applied it to first-degree murder cases (versus less premeditative and deliberative scenarios), it was a green light to the green mile. In the years since, Nevada prosecutors have sought the death penalty...vastly; achieved such a death verdict...plenty; and implemented an actual execution…12 times. One by cyanide gas, the rest strapped to gurney while deadly chemicals were pumped into their veins until bodily systems shut down one-by-one as though a twisted psychopath got to create a state protocol.

Many people originally sentenced to death row have had their cases reversed (usually because of prosecutorial misconduct, incompetent judges or new evidence), and one person, Roberto Miranda, was famously let off of death row after 14 years because it turned out… he was credibly innocent (receiving a 5 million dollar settlement for his "troubles").  For a long time, Nevada was at or near the top for having the most inmates on death row per capita in the country, and the state is one of the biggest contributors to America’s death-seeking statistics

Over the years, as the list of factors qualifying a first-degree murder case for death-eligibility grew (and grew) through a series of enactments in different legislative sessions, every single effort to abolish the death penalty (2001, 2003, 2017, 2019) failed to pass a policy committee.  That is, until April 13, when such a bill not only made it out of committee but also advanced off the Assembly floor. For opponents of the death penalty, it was certainly a cause for celebration.

We finally heard full-throated presentations in our Legislature outlining the racist and racially disparate underpinnings, the lack of promised closure to the families of victims from actual execution, the unfair impact on the families of the condemned, the inordinate expense of maintaining a death penalty that has only been carried out 12 times in 44 years and the fact that there is no evidence that having a death penalty option has any impact on violent crime in general. We also predictably heard desperately false and/or unprovable narratives from death penalty advocates that it is only reserved for an undefined category of people euphemistically referred to as “the worst of the worst” and how it’s necessary for an undefined category of crime called “extreme circumstances,” both in a desperate effort to show that a community is better or safer or, I don’t know, more macho if we at least have a death penalty with promises that it will only be used at exactly the right time for exactly the right reasons.

Within minutes of the bill’s passage in the Assembly, I lamented that it was highly unlikely the measure will ever be signed by the governor (who has claimed opposition to the death penalty)  or even make it to his desk — or even make it to a hearing in the state Senate. Why? Because many politicians fear being perceived as being against the death penalty even more than inmates fear being executed because of it.

* * *

I’m one of the attorneys in Nevada who defends people against allegations that they either murdered someone or were sufficiently connected to a murder to be charged that way. Understandably, it is a hard job. Some of my clients are innocent, and some have legal justifications. Some did exactly what they were accused of doing, but also have situations where the most severe degree of murder or even the harshest punishments aren’t appropriate. The rest, well, the rest are the easiest cases because both sides usually come to relatively quick resolutions unless the matter has been activated by sole prosecutorial discretion as a capital case, which means the potential for the death penalty is involved.

I’d like to think that I can hold my own against the skill level of any prosecutor on the other side of a trial working just as hard to convict my client as I am working to convince a jury otherwise. It would be foolish to believe that it is always equal (either way), but for purposes of this discussion let’s say there’s a degree of parity in the talents of the attorneys. Prosecutors may try to argue that they have the harder job because they bear the burden of proving the guilt “beyond a reasonable doubt” and because there’s (supposedly) a presumption of innocence in this country. This claim, to me, is the first red flag in a series of flags so red it looks like a military parade in Beijing and leads to my often-stated conclusion: Our criminal justice system is broken beyond repair. 

The illusion that America has a fair system — many people unstudied in comparative justice make the claim that it is the best system in the world, no less — with parity and due process at every turn is a bedrock argument for pro-death penalty advocates. In reality, we have aspirational goals, and we have reality.  The reality being that before a defense attorney gets anywhere near a case, the case has been picked over, analyzed, evaluated, locked in and mostly loaded by an army of police, detectives, crime scene analysts, lab techs and prosecutors (with their own investigators) who generally remain available with unlimited access throughout the duration of a trial. The defense attorney, meanwhile, is lucky to get enough funds to retest the relevant materials gathered (and touched and handled and moved around and touched some more) long before engaging a defense investigator with less authority than a traffic cop.

Just speaking on capital cases, while our clients, like anyone charged with a crime, allegedly enjoy a theoretical “presumption of innocence,” virtually every one of them remains in custody for the duration of their case. Juries are asked “do you believe in this principle of presumptive innocence?” — and anyone who wants to stay on the jury has to say yes, despite the optics of a situation involving a person they are told is charged with murder, who can’t leave the room and who they all assume wouldn’t have been arrested unless the person did….something bad. 

Then, after listening to the presentation of evidence where the prosecution gets to argue twice (first and last), they are given a set of sometimes very lengthy “instructions” overflowing with technical concepts, vague phrases and legal-speak (without any evaluation of the jury’s ability to comprehend, apply logic, or frankly, even pay attention) and are told to reach a conclusion, which they do most all of the time. This, the defenders of the “system” will say, means that the standard of reasonable doubt works. But there is ONLY ONE thing the jury is told about reasonable doubt:

“A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt.  Doubt to be reasonable must be actual, not mere possibility or speculation.”

Jurors are not allowed to ask questions about this standard. The lawyers and judges are not allowed to comment on this standard. We just hand over this word salad to 12 random humans and tell them – DO LAW!

Of course, between a capital charge and capital verdict, there is a lot that occurs, and in Nevada, the process is abnormally prone to abuse and misconduct. Far too often (in the alleged best system in the world) the whole process may even be scuttled and repeated — with zero penalty to the prosecutor or judge who may have caused the retrial in the first place. And before we even get to that, there’s the issue that agencies entrusted to judiciously and sparingly use the death penalty (and let’s be real, that’s mostly the Clark County district attorney’s office) are not actually to be trusted. The Clark County D.A.’s office is, in fact, a chronic abuser of the system: whether repeatedly and improperly trying to take people of color off juries (Batson violations), hiding evidence of innocence or grossly overcharging people in order to coerce a plea deal driven by fear of an unfair conviction in a broken system.

In my last few death penalty defense cases brought by the Clark County district attorney and set for trial, none involved more than a single death. One was a person’s first offense who wasn’t the shooter; one was a 21-year old on meth at the time of the shooting; one was the blunt trauma death of a meth-addict (under the influence at the time) for reasons still not clear; and one (still pending) involves a dispute between inmates that was passed over for prosecution by the attorney general, which suggests the lack of clear evidence.

All that is to say that while any murder can be described by emphasizing the most brutal aspects of the homicide (I mean, most people aren’t killed by being fluffy-pillowed to death), and with maybe 100 or more murders some years in Nevada, what is and isn’t the “worst of the worst” or “extreme” is ALWAYS going to be an arbitrary decision that lies solely in the hands of the district attorney. I could compellingly argue that none of my actual death penalty cases were among the “worst of the worst,” given other murders in Nevada with multiple victims and far more destructive and direct behavior without any question of culpability.  

None of these YOU CANNOT TRUST THE CLARK COUNTY D.A. TO RIGHTLY MAKE THESE LIFE AND DEATH DECISIONS arguments were brought up last week in the Legislature as reasons against the continued availability of the death penalty. The more philosophical but viable “the whole system is broken, how can we call any trial truly fair” argument also was sidestepped. Why Assemblyman Steve Yeager and his presenters decided to strategically bypass these important concepts is unknown. And not to second guess strategy (I mean, he WAS successful in getting the measure passed), but I think it’s well worth analyzing because the three barriers to passage come from Yeager’s own party — the Senate Majority leader (and full time prosecutor for the Clark County district attorney) Nicole Cannizzaro, the Senate Judiciary Chair (and full time prosecutor for the Clark County district attorney) Melanie Schieble and an up-for-election governor injured greatly by the polarizing pandemic.

Maybe the strategy was: Don’t call out the DA’s office because... DAs steer the Senate ship? Maybe the strategy was: Don’t call out the system because that’s a house of cards — and people will get that the “criminal justice reform” of a system that needs to be re-envisioned means everything we’ve done to “fix it” is mostly just window dressing? But failing to take these issues head on has left room for the opponents to still maintain credibility.

* * *

Almost immediately after the measure passed the Assembly, Senate Majority Leader Cannizzaro was aggressively noncommittal about hearing the bill, and instead gave a generic statement about all bills getting considered (or not). Senate Judiciary Chair Schieble agreed.  Moments later, the governor announced that despite being in “opposition” to the death penalty, he agrees with the district attorneys that it is important to keep the death penalty in place for “extreme cases.” Again, any first-degree murder case can be described in a way that qualifies it as an “extreme case,” so what many observers, including myself, deciphered from his remarks was that he’ll likely veto the death penalty ban — if it makes it that far.

And even, in the end, if an amendment could be agreed upon as to what an “extreme case” is, how could we trust that it would be strictly adhered to if it allowed prosecutorial discretion? I guess we could say, “The death penalty is only available when there is undisputed video-taped evidence of the defendant directly taking the life of more than (insert number here – 20, 10, 2) people in a way that suggests no mental illness, no drug addiction and a motive so evil by way of confession that no jury could even consider anything else.” Short of that – yeah, same old boat.

I mean, right now the district attorneys are saying we need the death penalty and the law already says it’s for extreme cases. Clark County D.A. Steve Wolfson is even ready to sacrifice a notorious death row inmate coincidentally timed to meet the legislative process, but with major issues still left to litigate

"Extreme cases" are basically the current requirement of the U.S. Supreme Court. Unfortunately, in Nevada that means that any first-degree murder case (even my notorious fluffy pillow murder example) can be a death penalty case right now.  We have 15 categories (many with subcategories) in Nevada designed to cover “the extreme” (i.e. every possible, real life first-degree murder), the ONLY exception being if the person accused is under 18 or suffers from significant intellectual disability (originally called in legal terms “mental retardation”).  

So what are these categories that make something “extreme?” If there was no motive, or if there was a specific motive like money (for himself, herself or another). If it occurred where other people could have possibly been seriously hurt or at a public or private school or on a school bus. If the person killed was under 14 years of age. If more than one person was killed. If the person accused had committed a prior violent crime or was on probation or parole or incarcerated at the time. If the murder was committed in close conjunction with a robbery or a burglary or arson or home invasion or kidnapping or “terrorism” or rape (before, during or after the murder). If the murder was done in an effort to escape arrest. If the victim was a police officer or a firefighter or a corrections officer. If the person was tortured (and that concept remains troublingly vague) or mutilated. If the murder was a hate crime based on race, color, religion, national origin, physical or mental disability, sexual orientation or gender identity.

I have often challenged prosecutors to point to a first-degree murder case in Nevada that doesn’t qualify for the death penalty under at least one of these categories — and none has been able to do so. But even if that unicorn case came up, it would be statistically insignificant. Thus, short of any amendment or an announcement by the governor that he’s probably not going to support abolition of the death penalty (because any exceptions means no exceptions), I will not be surprised when D.A./legislator Cannizzaro announces, "We have far too many bills and precious little time to rehash a death penalty debate that equally splits our community and which the governor will not support." Which will be code for “gosh...gee...the session is really busy and controversial issues like this take too long with public comment….and I also want to keep my job.”

Because I’m a cynic, I think this whole thing was too much of a show (despite heartfelt testimony and the sincere comments of many legislators supporting this bill). I think it was understood all along by legislative leadership that no amount of pressure was going to move district attorneys Cannizzaro and Scheible to go against their boss (who testified passionately against the abolition bill). I think it was understood that those two don’t have the slightest actual concern over how their office uses the death penalty or conducts trials. But without cover from the governor, they (and they alone) would forever be blamed for blocking a progressive measure — and the rift in the current political and electoral environment on such a hot topic issue might be destructive. I rightly predicted a lot of fire followed by wisps of what could have been. The sky is looking cloudy for abolition.

Predictably, too, the arguments of the DAs and even outlier legislators like Assemblywoman Annie Black contained the sort of emotional “but what about…..” and “but what if….” ad absurdum arguments that have made the death penalty a litmus test of whether you’re for “justice” or as Black said “a murder coddler”. Even as southern states like Virginia are finally getting out of the state-sponsored death business, there’s no doubt that these ridiculously myopic arguments still resonate. Gov. Sisolak is shrewd enough to understand vulnerabilities in a race against possible opponents who will clearly position themselves with pro-hang ‘em high cred. Low-fruit arguments like what if Hitler shows up, who WOULDN’T want to kill Hitler are hard to easily answer. Even Sisolak's invocation of “what about the October 1 shooter, shouldn’t we have had a chance to execute him?” (aka the “Damn! Why’d he kill himself, WE should have done it” argument) would make for rough campaign ads against a vulnerable incumbent who just signed death penalty abolition into law. All this is about the death of the death of the death penalty, again. There will be laments. There will be self-congratulatory “well, we made it further than we ever have.” But we will continue to maintain a death row that should be a relic. And it will continue to serve as a bellwether of who we are as a society, and what the real value of life means in the murky waters of true justice.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.

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