Page 2 of 2The subjective application of the death penalty also extends to the prosecutor’s discretion in seeking the death penalty. While researching an article on the 30th anniversary of Gary Gilmore’s execution last year, I spoke with a number of local attorneys, including some prosecutors. Virtually all of them spoke of a cultural understanding within Utah, that the death penalty is only to be sought in the most extreme cases, and that aggravated murder charges are almost exclusively used as to obtain plea bargains. This was meant to assure me, and the public, that the death penalty is fairly applied, and to an extent it does. But it also places a huge amount of trust in the judgment and temperament of the individual prosecutor. “The first question when look at a death penalty case is, who is the prosecutor,” Clarke asks. “It is no coincidence that most executions in this country take place in Texas. And a large number of those cases originate in Houston, where the District Attorney is a man name Charles Rosenthal. Philadelphia is another city with a disproportionate number of capital cases, in large part because of prosecutor Lynne Abraham. So where you are being tired greatly alters your chances of being given a death sentence.” Race, as it is in so many death penalty cases, may also have been a factor in Maestas’ trial. Maestas is Latino, while his accomplices, Rodney Roy Renzo and William Hugh Irish, are both white. Renzo and Irish will both receive sentences of five years to life in exchange for the testimony they provided against Maestas. Maestas’ lawyers maintain that prosecutors made this deal because he was the easiest one to pin it on. “[Race] is the strongest predictor of whether or not a defendant will receive the death penalty,” Clarke says. “When you get down to it, this is the most complicated area of law in our system, and its application is basically a lottery. In Furman vs. Georgia [the 1972 Supreme Court case that invalidated all pre-existing death penalty statutes], the main concern was that the death penalty, as then applied, was completely capricious and arbitrary. But it has been replaced by a system that, despite its best efforts, is really no less capricious and arbitrary.” But perhaps the most troubling chapter of the Maestas trial was the final one. When the prosecution’s penalty phase case rested, the defense was prepared to put several psychiatric experts on the stand, to examine Maestas’ impoverished background, the abuse he suffered as a child, and, most importantly, his diminished intelligence. Prior to the trial, Maestas had been given an evaluation to determine his intelligence level. He was found to be, if barely, fit to stand trial. His lawyers disagreed, and wanted to revisit Maestas’ limited IQ during the penalty phase. But before they could, Maestas personally handed a note to the bench, asking the judge to prevent his lawyers from entering any evidence of his family history or mental state. Over the objections of defense lawyers, Maughan sided with Maestas, and the defense was forced to rest. “It’s very sad, but this conflict does come up. Lawyers have an obligation to present evidence of their client’s mental health if it could be mitigating, but the defendant has the right to control his own defense,” says Clarke, who stresses that he is not commenting on the facts in the Maestas case, so much as he is speaking generally. “It raises two questions. First, if the defendant clearly was not acting in his own interest, was it an intelligent, knowing waiver of his constitutional rights? And second, is the defendant really above the threshold of mental competence, as vaguely defined in Atkins? If the answer is no, it would bar execution, and evidence to either of these points could be produced in a habeas corpus petition, if this case ever gets that far.” It could take years for it to get that far. The Utah State Supreme Court will automatically review Maestas’ death sentence, and after that his lawyers will likely appeal on technical grounds. If that fails, they will then be able to file for habeas relief, asking the courts to consider if, in fact, Maestas’ death sentence is proper.