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Last week Floyd Eugene Maestas became the 10th man awaiting execution in Utah. Two weeks earlier, Maestas had been convicted of aggravated murder for killing of Donna Lou Bott in 2004. Prior to her death, the 72 year-old Bott was beaten, stabbed in the cheek, stripped from the waist down and strangled. Maestas and his accomplices also burglarized her house after she died.The jury in 3rd District Court Judge Paul Maughan’s courtroom had little trouble determining Maestas’ guilt and then subsequently recommending the death penalty. They deliberated less then seven hours—three hours on the verdict; four more for the death penalty decision. But Maestas’ trial, the first capital murder trial in Utah in more than a decade, is not the clear example of justice that the jury’s minimal deliberation would suggest. In fact, Maestas’ trial illustrates many of the potential problems with our modern application of the death penalty.Since 1976, in the case of Gregg v. Georgia, the U.S. Supreme Court has mandated that capital murder trials be divided into two phases—the familiar guilt phase, and a special penalty phase, where a jury would consider the death penalty option. I sat in on a portion of the penalty phase in Maestas’ trial, and at first glance, it preceded much like any other trial. As with the guilt phase, the primary purpose was to present evidence before the jury. The prosecution called up a number of Maestas’ previous victims–elderly women who Maestas assaulted and burglarized in the years before murdering Bott. The lead detective in the Bott case also testified, recounting the crime scene in graphic detail.What was unique about this penalty phase was that this evidence was not intended to lead the jury to a rational, fact-based determination of guilt, but, as defense attorney David Mack put it, to reach a “moral decision, to make a judgment that can not necessarily be explained or articulated, and may be based entirely on one’s feelings.”“Since Gregg, sentencing in death penalty cases has revolved around this idea of using aggravating and mitigating factors to channel the jury’s thinking toward an appropriate sentence. The evidence is supposed to give to the jury what may have led the defendant to commit the crime, what future threat they may pose, and how this crime is distinguishably heinous from others,” says Alan Clarke, a professor at Utah Valley State College, and co-author of the excellent new book, The Bitter Fruit of American Justice: International and Domestic Resistance to the Death Penalty.“But, the problem is that all murders are heinous and vile,” adds Clarke. “So the question becomes, how is the jury supposed to make that meaningful distinction?”Whether Bott’s murder was “extraordinarily heinous” was argued over in pre-trial hearings. Maestas’ lawyers claimed that Bott’s murder was not comparable to torture-murders, such as the Ogden Hi-Fi killings. But Judge Maughan disagreed, noting that not only did Bott’s murder have a “sexual element,” but also that the killer “inflicted needless suffering.” “The problem with trying to distinguish the heinousness of a particular murder, in my opinion, is that the courts have never come up with any meaningful standards by which to do it,” Clarke says. The heinousness issue was heavily litigated throughout the late 1970s and 80s, but Clarke points to Godfrey v. Georgia to illustrate how it was never fully resolved. “In that case, the Supreme Court overturned a death sentence, saying that crime in question was not tangibly worse than any other, but they did not really say why. So the process still relies on subjective factors that cannot be quantitatively assessed.”