Hon. Judge Donald Mosley (Ret.)
In conjunction with our article License To Kill. Our Nation’s (& Nevada’s) Struggle To Maintain Death Row, we had our contributing writer, Mark Fierro, reach out to Hon. Judge Donald Mosley (Ret.) and criminal defense attorney Tom Pitaro, Esq., to get their personal views on the matter.
Fierro: Tell us about your experience
Mosley: Well as you know, I served as a judge for 33 years. I sentenced a number of people to death. During the entire time that I was a judge, 33 years, one person who I had dealings with was executed. This shows you how efficient and how well the system works. That person, was a fellow convicted in Reno. I was part of a 3-part panel that was appointed. The only reason he was put to death, was because he refused more appeals. He just gave up and said I don’t want to fight it anymore. So they finally executed him.
Fierro: Recently, there was a family, where a woman was killed, and it was originally thought to be a case of road rage. I told her husband that before he says anything to the media about it, he needed to understand something: If he gets the death penalty, the day he gets to death row, it may take a while to get there, but the day he gets to death row, inmates will tell him, you have nothing to worry about buddy–this is the country club. Nobody can hurt you here, you don’t exercise with anybody, you don’t eat with anybody, and you get medical care, just like everybody else does. You got out for 1 hour every so often. It’s the Taj Mahal of incarceration.
Mosley: And more expensive by the way, for the taxpayer. Incidentally, the Supreme Court ruled some years back, that the people on death row have the same rights to life saving organs as you and I. Now here’s a convicted murderer who needs a liver or something to survive, but he gets right in line with everybody else. You might die, because you don’t get a liver and he might be saved. Somebody that’s already killed somebody.
Fierro: When you’re trying these cases all these years, is there a different sense of pressure that you feel to ensure everything is done properly?
Mosley: Well, again as you probably know, when you have what we call a death case, a trial having to do with the possibility of a death sentence, there are a lot of requirements that aren’t ordinarily made at a trial. You get daily transcripts, which are required. You have to have two attorneys, one of them at least death qualified, so that means additional training. And of course these items are scrutinized more closely, and rightly so, if you think about it. So yeah, you want to be sure that you get everything accomplished that needs to be done and that you do it the right way.
Fierro: You’re sitting here in an open court of theoretical perspective, both sides, you’ve got the prosecution, you’ve got the defendant, but he’s not convicted of anything yet. Do you have a sense of the victim? The victim’s family? What they are going through? Does that stand out in your mind?
Mosley: Well that’s true in any case. If I understand your question, it’s kind of a two-part question. Do you empathize with the victim’s family, which you always do to a certain extent? Certainly more so in a death case like this. Do you get a sense of what really happened? Whether the jury recognizes it or not the truth is, you do. A Judge gets accustomed to hearing these things and evaluating testimony, and you get a pretty good sense of what is going on by the time it is given over to the jury.
Fierro: Have you ever gotten close to the line, as far as you are concerned? Whether it was a line call or somebody got sent up that you didn’t know necessarily was the case?
Mosley: I can remember only one case and it was a minor case that didn’t amount to anything, where I disagreed with the jury and I actually sentenced someone very lightly because of it. But it didn’t amount to anything. I would never abide a guilty verdict, if I were strongly to disagree. There would be some ways to make input on it. So no I haven’t. You have to realize, by the time a case gets to District Court, they have been through Justice Court, they have been through all sorts of investigations, there’s not a lot of room for error. Although I cannot say it’s infallible, but you’re not going to see a lot of mistakes made.
Fierro: Are your particularly in favor of or against [capital punishment] and why?
Mosley: Well, in principle, I’m in favor of the death penalty because in some cases I think it’s just justice, pure and simple. Am I against it? Yes, because it doesn’t work. It costs the taxpayers an inordinate amount of money. The appeals never end. And no one ever gets executed. Like I said, in 33 years, 1 person. The extra time, expense and effort that goes through trying a case with the possibility of the death penalty is just not worth what we go through to accomplish it.
Fierro: If you were to tell people, yes we have to go forward with this or no this is getting ridiculous for nothing, what would you say?
Mosley: The way it works today I would eliminate it. It is an unbelievable expense that serves no purpose. We could change the laws to make it work, but we don’t have the appetite to do that.
Fierro: It’s currently lethal injection, here in Nevada, as well as the rest of the United States. But there is a shortage of medications. Do you see going to another form, or do you think there is a possibility because the way you position it, people on the other side, think we may eliminate it.
Mosley: Well first the lethal injection is a very humane way to kill someone, if there is such a thing. I mean you just put them to sleep. Now I might point out that rarely do victims of murder get that sort of consideration. They go through a lot of anguish most of the time. I’ve heard there is a shortage of chemicals. I think that’s just another way of objecting to the death penalty.
Fierro: A lot of people are surprised to hear that it cost more to sentence somebody to death. If you sentence them to death, then it’s over and you get done with it and don’t have to spend $20,000.00 a year keeping them in prison.
Mosley: In theory that’s true. The problem is, they are up there 15 to 20 years on death row. They die of natural causes most of the time.
Fierro: For many layman, they are unaware of the fact that even though people are charged with heinous crimes, they have these tremendous protections, due process, the same rights that apply to all Americans. Do you think that provides some value that we jump through these extra hoops for these death penalty cases?
Mosley: Well as I said, the trial process, and the evidence that is induced at trial needs to be looked at strictly, obviously. It is a very important situation when you are looking at someone’s life. Do we go overboard? Yes indeed. Your first appeal is with the Nevada Supreme Court. Then there is always a Federal question that arises and then it goes to the Federal Court. The Federal Court looks at it and says, no we remand it to the State Court, then it gets sent back and forth and up and down. Decades go by sometimes. That’s what makes it so ridiculous.
Fierro: I don’t think the average person understands. How regular District Court Trial costs hundreds of thousands of dollars. Cause you’re paying for the prosecutor and the defense and the defense investigators and the police and the courtroom and the judge and the staff.
Mosley: You’re right, that’s one of the arguments that people don’t understand against plea bargaining. If we tried every case and didn’t have plea bargaining, hell we would need 10 times as many court houses and judges. Because as you know, we probably plea bargain 85 to 90 percent of the cases. But yes, it is an expensive proposition.
Fierro: What are the changes you would like to see? Is there a change that needs to be made? Is there something?
Mosley: There are certain attorneys that are… famous… we’ll say, for appealing these cases and they have it down to a science. They can spread out the issues over years. They don’t shoot it all in one shot. So they can just keep churning this thing. I use the word churning advisingly. It’s a term that’s recognized in law, I think. Although not a very well received term. We need to put some sort of limit on appeals. And we need to inform people what a death case is. People tend to think if you commit murder you could be put to death. That’s not true. Only the worst of the worst, the most extreme circumstances, warrant the consideration of the death penalty. Such things as: killing multiple people, killing a police officer in the performance of his duty, or mayhem, when you torcher someone and cut their hands off, things of that nature, those are the cases. It’s been my experience when you tell the average person on the street that kind of thing and give a couple examples of these horrendous cases that I have dealt with, they kind of think, you know what, maybe the death penalty is a good idea.
Fierro: Given your position on the death penalty, it seems that we have a state problem and only a state problem. Cause Texas has a death penalty case once a week.
Fierro: So it has to be a state issue. Is it that we lack will to do something as a state about this process?
Mosley: Well, Texas and Florida is another, I don’t know exactly what their laws are, but I think it might be worthwhile to look at them. They are doing something probably right. Now again, I haven’t examined all those laws, I don’t know that I would agree with all of them, but they seem to get the work done. If it’s not an injustice, then it’s a good thing. It’s worth of some scrutiny I think.
Fierro: Do you have anything else you would like to add?
Mosley: Well you know, what is this, Monday? Yesterday on 60 minutes, they had another one of these famous cases where someone was found innocent after serving 10 or 20 years in prison. I refused to watch it, I turned it off because I’m tired of watching that kind of nonsense. I might point this out, when you see those cases the press is trying to accentuate their point of view, of course. But this guy spent all this time in prison and we have DNA now. They did the rape sample case and it turned out it wasn’t him. So he must be innocent of killing this girl. First, they don’t talk about the horrendous record most these people had before they got involved in this last case. Secondly, the fact that the DNA doesn’t check out doesn’t mean the guy didn’t have a co-offender, one guy raped her the other guy shot her. If someone did a felony, with another individual, this thing called the felony murder rule says your just as guilty as he is. I mean all kinds of things that go into this mix and they never report it. It’s always, the DNA showed he’s innocent. Turn him lose and forget it. Gee whiz, isn’t this a terrible system we have? It’s just an unfortunate that people don’t get a better sense of what those are.
Criminal Defense Attorney Tom Pitaro, Esq.
Fierro: So tell me a little bit about your experience in handling capital murder cases.
Pitaro: I’ve been involved in a number of capital [murder] cases over the years, I actually have a death wish defendant who ultimately got executed. I’ve represented people where they sought the death penalty. I’ve currently got a case now where the sentence has been reversed, and we are going back for a penalty phase after almost 30 years.
Fierro: Tell me about that case, tell me about the 30 year case, just give me a thumbnail.
Pitaro: Well it’s still pending in court, the federal court of appeals overturned the death sentence and remanded it back for a new penalty phase.
Fierro: So are you particularly in favor of or against capital punishment, and why?
Pitaro: I’m opposed to capital punishment, I mean there are four ways of looking at it and capital punishment fails on all four. I think from a religious concept, probably the majority of the churches in America oppose capital punishment. The Catholic Church is opposed to it, Pope Francis just came out recently and re-affirmed that capital punishment should not be used in any circumstances. So you have a religious component, as do a number of other religious groups; Presbyterians, I think the Anglicans or the Episcopalians, I mean there’s a whole variety of religions that are adamantly opposed to it. Even the ones that support it put conditions on it that make it very difficult for it to work in our system. So from a religious viewpoint and as a Catholic, a practicing Catholic, I have the religious component.
There is a moral component that it fails at also. That moral component is it’s arbitrary, it is unfair and it is discriminatory. It is used mostly against poor, unintelligent people who have or are ethnic or racial minorities and it has been that way for the last 100 years and it continues to be that way. There’s a legal reason that I’m against it. It’s that we can’t get it right. Since we have reinstated the death penalty the legal system has tried over and over and over again to get it right and we can’t. Just in Nevada we have had a couple of people on death row exonerated for actual innocence. The outstanding things that have been happening with the innocence projects around the country are phenomenal and show that the legal system doesn’t work. [You] can’t come back and review something and then find out that you’re wrong once you’ve already executed the person. So from a legal sense the legal system has never been able to do it right.
And then even more interesting is from a financial stance because the Nevada legislature a couple years ago put together a study and the findings were that if you don’t seek the death penalty for a murder it costs about five hundred thousand dollars ($500,000) less to go through the case than if you were to seek the death penalty. If you sought the death penalty and you weren’t successful and ultimately the state wasn’t successful, it cost one point three million dollars ($1,300,000). So the cost of the death penalty is higher than putting someone in prison for life without the possibility of parole. I know that’s counter-intuitive, but if you understand the way the legal system works and the appellate process, you know that it is a fact of life and that is not any different than other states almost all the other states that have this I believe they find that the cost of trying to execute the death penalty or impose a death penalty is much more expensive than not doing. So for all those reasons I’m opposed to it, any one of which would be enough for a rational person to be against it. When you add them all up together it becomes difficult for me to consider that anyone could be in favor of it knowing these facts.
Fierro: Let me give you one other thing, we will step off the script for a moment. You know, I worked with that family where the woman, they originally thought it was road rage, and the guy shot her in the head; the kid was about 5’2, 20 years old / 18 years old, and I had a chance to sit with the victim’s husband and I said I’m going to tell you something and I hope that you’ll think about this before you make any statements to the media because they are going to ask you sooner or later. I want to tell you what happens to people when they get the death penalty, just so that you know. As soon as they get to the prison, once they get to death row – it takes a few days, but once they get to death row the first thing that they are assured is that nobody there knows of anyone who got killed. So you just sent this guy to the penthouse suite. He is never going to be in any danger, he exercises alone, he eats alone, he showers alone, the only fight that he has is over which television station they are going to watch collectively. If on the other hand, this kid goes into general population, he will be raped, he will be beaten, he may not last a year. Just out of fear alone he may not last. Which speaks volumes as to why you don’t give these people the very best treatment, we withhold it for the worst.
Pitaro: Well I mean, my feeling is a little different in that I don’t think that executing an individual ultimately gives closure, which is the magic word that we want to bring– ‘closure’. Well as far as the death penalty doesn’t bring closure if it’s a death penalty case because the appellant process quite rightly goes on for an extended period of time so you’re really prolonging this agony of the victim’s family. Secondly, when it’s over I don’t think anyone really gets this degree, this concept of closure that is so touted while you’re seeking the penalty. To me there is nothing sadder than watching the family of a victim of a crime, of a murder, when they walk out of the courthouse, they are alone. While that process is going on they are needed, if you will, by the prosecution, the media et cetera. But once that case is over they are forgotten and it goes out, I don’t think there is any closure in a death penalty. I’ve never seen any real evidence psychologically that it works. To me it just prolongs the suffering and leaves that empty hole afterwards where you are now left with it and there is nothing there. The people that I found dealing with it best are those who engage in therapy, a type of counselling if you will, to allow them to deal with the death more so than dealing with the fact of the perpetrator.
Fierro: Alright, currently lethal injection is the most favorably used form of execution in Nevada as well as the rest of the US. With our history of botched executions and a national shortage of medications available, do you see us continuing with its use? Or progressing to some other form of execution? Or possibly an end to capital punishment all together?
Pitaro: Well, we keep switching the way we do it, you know from hanging to shooting to electrocution to lethal injection trying to find, if you will, a humane way to commit the worst in humanity there is, killing somebody. In lethal injection we have seen over the last years or so that certain drug companies don’t want to be involved, where state governments are engaging in almost smuggling in drugs from one state to another or from foreign countries, so they can execute, and yet the problem of the doctors being involved in it, they got oaths not to be involved, to do no harm and yet here they are, they go out and participate in, if you will, a killing. So, this idea that there is some sort of humane way of killing someone is an absurdity, just saying it is an absurdity, the only rational solution to the problem is in fact eliminating the death penalty and continuing with at least the life without the possibility of parole or whatever system you want to have there. We make too many mistakes, we condemn too many people who are poor or minorities. When you start going through the process it sort of fails on its own, so, lethal injection is just a good way for politicians to say ‘Oh I’m trying to be humane’ when in fact they are not.
Fierro: What are the additional legal hurdles? Go into that if you would, the additional legal hurdles that a prosecutor has to go through to seek the death penalty.
Pitaro: What you have to do is, first it has to be a case that qualifies– that you think qualifies for it, so it’s a prosecutorial decision. It’s the prosecutor who makes the determination if the case is going to be treated as a death case or not. So there is no rule that says this ‘case will be’ or ‘that case won’t’ be. It’s up to the prosecutor to make that decision, and of course that decision then becomes a political decision because the prosecutors are politicians ultimately. So, there’s no broad base of decision making in the first instance, it’s whatever the prosecutor determines and however he sets that up. So the first thing they’ve done to try to get around some of these things or try to deal with it, they will have a committee and a prosecutorial office that may look at the case and, figuring that they have so many people say that it’s ok, then they will go and follow it with the death penalty.
Federally, we have a policy where you can go back to Washington and argue that your case should not be a death case. So that’s the first situation that comes in, and that is what do we charge the person with? And are we going to seek the death penalty? So those are very, very important decisions that are made. The second thing is when you get there, then a whole bunch of different rules, I won’t say as much as expanded rules of discovery. You have the attorneys that are involved in the case who now have to have been qualified to do death cases. The average, if you will, an unqualified defense attorney can’t do a death case unless he has a qualified attorney with him. Once you get beyond that, you have another great factor involved in death cases known as mitigation. And the courts as well as the ethics have demanded that there be mitigation evaluations made so that you can present mitigation to the jury. You have a guilt phase and then you have a penalty phase and then it becomes up to jury, if you will, in the death case to make the decision is it death, life with the possibility of parole or life without? Well, for them to make that decision the prosecution then has to bring in what we call ‘aggravating circumstances’ to make it in to a death case or to ask for a death penalty, and the defense is obligated to bringing in the mitigating factors of the person’s life, and I mean that- of his life, to tell the jury to, if you will, mitigate or offset those things so that the jury can make a decision. So as you can see those sort of things go further and further and become more and more expensive as we go. Then once the verdict of death is in, we have a heightened sense of appellate reviews all the way through the state and to the federal system. So what we have then is the very, very expensive and time consuming situation when the prosecution seeks the death penalty.
Fierro: Here’s one, laymen are often unaware of the constitutional protections under the eighth amendment and they get angry, it’s a gut reaction, when they find out about those protections against cruel and unusual punishment. Give us your thoughts on why it’s so important to provide such protection, and on the contrary, do you ever think that we are protecting the accused too much?
Pitaro: Well, now you can’t say that you’re protecting the accused too much unless you’re the accused. And then all of a sudden you think that all those rights that you heard about, you want them to apply to you. First and foremost we gave up the idea of ‘blood liable’ or ‘blood for blood’, about a thousand years ago, that is individual vengeance, and that’s what the death penalty is. Do you equate the crime with the punishment in the sense that you’re trying to make them equal? Because, you’re trying to make them the same thing. If someone steals, you don’t go out and steal from him, society doesn’t go out. If someone drives drunk, some state official doesn’t go out and get drunk. If someone punches you, you don’t have someone go in and punch them. Only with the death penalty do we have this. The thing is, the constitutional safeguards – they don’t protect criminals, they protect people. They protect the innocent as well as the guilty because they are to be applied to everyone. And who is going to make the decision that ‘I want this constitutional provisional applied to this person, but not the other.’ So what we have is, we have people who read about these things, hear about these things, et cetera without knowing all the facts many times, and coming to a conclusion – we do that all the time, I mean that’s what the media does, no one reads every case or reads law. But, the fundamental part of it is that it is there to protect us as a society. This is what we say, that we as individuals, before the society can do these things to us, they have these restraints on them and these restraints have to apply to the government, to everyone there is. And what the problem is with the death penalty especially is that they don’t apply. We found out that the right to counsel historically has not been as high when you have a death case, as say another one, because of a skill that may or may not be involved in the litigation of the death case.
We find that it is disproportionate to the poor, so that equal protection of the law sort of falls down there. When we look at the minority groups we know that it is arbitrarily applied more to minority groups than should be there. And so the purpose of these laws is to protect that and we can see where even our laws have been unable to protect us in that. And the last thing is, look, everyone gets offended when they hear of some horrendous sort of crime, everyone does, that’s a normal reaction of people, but we want to pause to get the emotion of the vengeance out of it to make a fair determination. You know, I can be offended if someone does something to violate my personal security or whatever, but that doesn’t mean I can take it under my own hands, and many times that is what it is, the reaction is ‘well I don’t think THAT person should have a right to an attorney’ and I hear that all the time. ‘I don’t think THAT person should have the right to remain silent.’ ‘In this community I don’t think THAT person should have a right to bail.’ But if the shoe was on the other foot – and I hear this with people, ‘well my son, I’d agree with that law but not to MY son, or to MY daughter.’ And so we personalize the rights that we want, but we want them for ourselves. We find it difficult to project them to other people and that is one of the reasons that this system is supposed to work, tries to work, and that is to apply laws uniformly and we find out that it has been a failure especially in the area of the death penalty, when you start executing innocent people, you know, that says a lot about our society. We are a violent society, America’s society is a violent society and anyone that denies that hasn’t gone outside in the last hundred years. And that carries over in to our laws and our sense of vengeance that we have. That’s what happens with violent societies. United States is – quite truthfully, the only western, if you will, western civilized society that still has a death penalty and I think the other guys got it right this time and not us.
Fierro: What are the changes you would like to see in the process either from the courtroom prosecution, defense aspect, or in the actual execution process?
Pitaro: Well, one, I think the only change I want to see is the abolition of the death penalty. I don’t think that once you have that position there is any way you can rationalize ‘can I come up with a humane way of killing someone that is executing them?’ You can’t come up with a rational, sane way of putting them in the isolation that they are put in when they are in the death row situation. Truthfully there is no way, it’s either abolish it or abolish it. I have no feeling that there is any way it can be made better. Hanging, shooting, electrocuting, sticking you with a needle or some other form of execution – I think they are all equally bad, and I don’t think we should spend any time as a society trying to find a different way to kill people so that the people who make the decision to kill can feel better.