Death Penalty Debate Might Include Right To DNA Tests / Experienced Counsel
The Legislature's debate on the death penalty could be something more in 2009 than the expected up-or-down vote on whether to kill condemned inmates with drugs. The state Supreme Court last year banned doing it with the electric chair.
The debate could involve giving defendants in death penalty cases the unfettered right to DNA testing which might prove their innocence, along with a guarantee of never getting a court-appointed defense lawyer who has never previously participated in a potential death penalty case.
"It seems to me that all we are talking about here is basic fairness, just things to try to make sure we don’t kill innocent people," said Sen. Cap Dierks of Ewing.
The 49-member Legislature, including 16 newly lawmakers, convened Wednesday for a session limited by the state constitution to 90 working days. Sen. Mike Flood was unanimously elected to a second term as Speaker of the Legislature.
Dierks opposes the death penalty with the same fervor he brings to his longtime fight against the abortion rights spelled out in Roe v. Wade. That means he is subject to criticism from both camps.
Life is life, Dierks said, and only the Almighty should give it or take it away. And he doesn't see execution or abortion as carrying out God’s will. There are 10 people on death row in Nebraska.
He pointed to a recent Nebraska case where DNA testing proved the innocence of a man who was in the 19th year of a life sentence for 1st-degree murder. Several others were convicted of lesser crimes related to the same murder after they pleaded guilty and confessed – in the face of prosecution threats to seek the death penalty in their cases.
"What if that man had been executed?" Dierks said. "And look at the cases all around the country where DNA proved people on death row were innocent? What if the death penalty had been used, quickly, in those cases? It's just not right."
"It shouldn't be up to a judge to say if a DNA test can be made when someone accused of murder wants one," he said.
In the Nebraska case referred to by Dierks, a lower court judge had denied a request for further DNA testing during the convicted man's last appeal. The state Supreme Court reversed that decision. Subsequent DNA tests led to his release, and an acknowledgement by authorities, including state Attorney General Jon Bruning, that the government had erred.
Dierks also said the Legislature should probably consider requiring that court-appointed lawyers, in potential death penalty cases, have some previous experience in such cases, such as having helped another attorney who was "lead counsel" in one or more such cases.
With surveys showing that a substantial majority of Nebraskans and state lawmakers favoring the death penalty, and approving lethal injection as the tool for it, Dierks doesn’t think he can repeal the law, or even block the move toward lethal injection.
"I've always understood the majority rules on this," Dierks said. "I will try to change people's mind, but I won't be screaming and yelling; just trying to convince people that I'm right. This governor seems to be calling the shots on this, and he wants the death penalty."
Republican Gov. Dave Heineman favors lethal injection.
Dierks won't try to filibuster death penalty related measures, in the fashion of former longtime Sen. Ernie Chambers of Omaha, a firebrand who brought legislation to repeal the death penalty in everyone of his record-setting 38 years in the Unicameral. Term limits forced Chambers out of the Legislature this year.
Chambers opposed the death penalty on several grounds. The process, he argued, was arbitrary, capricious and unreasonable – all the way from the time of arrest to the death chamber. Everything is weighted against the poor, and especially racial minorities, he said. That includes the bringing of murder charges, to prosecutors deciding to seek the death penalty, to death sentences, to appeals, to the carrying out of executions.
(Source: Nebraska Statepaper.com)
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