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June 17, 2019

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Defense lawyer loses bid to get judge to kill Nevada’s death penalty

Cannizzaro

Ryan Tarinelli / AP

In this April 22, 2019, file photo Senate Majority Leader Nicole Cannizzaro speaks at an event in Carson City.

A state court judge rejected a bid by a defense lawyer on Tuesday to declare Nevada's death penalty unconstitutional because the two most powerful lawmakers in the Legislature are also career prosecutors.

Attorney JoNell Thomas, representing a man facing three upcoming capital murder cases, said Senate Majority Leader Nicole Cannizzaro and Assembly Speaker Jason Frierson — both Democrats and deputy Clark County district attorneys — killed debate in the Legislature about capital punishment.

Clark County District Court Judge Douglas Herndon agreed with Thomas that Nevada may be unique among U.S. states to have part-time legislatures led by party leaders whose full-time jobs are to enforce the law.

Neither the judge nor Thomas said they could find previous instances in other states or court cases on the question.

Thomas argued the legislative leaders' roles as prosecutors and law enforcers make them different from elected state representatives who are defense attorneys, firefighters or teachers.

"The people who enforce the law can't make the law," she said.

Herndon, a former Clark County prosecutor, declined to decide that question.

He said his role is to administer proceedings to determine if 27-year-old defendant Alonso Perez is guilty — and a jury decision on punishment if he is.

"This is not really a forum to investigate whether there is legislative bias or why particular representatives may or may not have done something, whether they're prosecutors or anybody else," he said, adding that if there is impropriety in the Legislature, it would be up to elected lawmakers to address it.

Herndon also denied Thomas' request to order Clark County District Attorney Steve Wolfson to turn over copies of any emails, memos and telephone records between supervisory prosecutors and prosecutors serving in the Legislature.

Cannizzaro and Frierson did not immediately respond to messages about the ruling.

Thomas declined outside court to comment, but said later she'll "likely" appeal Herndon's ruling to the Nevada Supreme Court.

Wolfson, who was in the courtroom for the hearing, said he thought Herndon reached a "proper conclusion." The district attorney also noted that Perez's attorneys were making similar arguments before other judges handling his other murder cases.

Perez faces separate murder trials next year in slayings dating to August 2016.

The court filing on his behalf seeks a finding that the death penalty in Nevada is "invalid because the legislative process ... has been compromised due to prosecutorial interference and dominance in Nevada's Legislature."

It claims that Wolfson, as Cannizzaro's and Frierson's employer, exerted improper authority over legislative leaders and "indirect authority over his subordinates" to kill debate on the death penalty.

Nevada has almost 80 inmates on death row. The state has not conducted an execution since 2006.

Gov. Steve Sisolak, a Democrat, has said he opposes the death penalty except in extreme circumstances. He has declined to comment about Thomas' death penalty challenge.