Attorneys debate death penalty in Ross case

Second District Judge Mark Monson heard 16 motions for about three hours in the murder trial for Richard Ross, most relating to the Nez Perce County Prosecutor’s Office decision to seek the death penalty.

Ross’ public defender, Jay Logsdon, appeared Monday before Monson at the Nez Perce County Courthouse, along with public defender Anne Taylor, who appeared by Zoom. The defense filed the 16 motions since September 2022, and prosecutors, Nez Perce County Prosecutor Justin Coleman and Chief Deputy Prosecutor April Smith, who were also in the courtroom before Monson, filed responses. Attorneys were in court, along with Ross who appeared in dark jacket and dress shirt. Ross’ trial is scheduled for Jan. 16 and no decision on the motions were made in court.

Ross is charged with the first-degree murders of 76-year-old Edwina “Eddy” Devin and her 57-year-old son, Michael Devin. The investigation shows Ross allegedly either smothered, strangled or inflicted violence on Eddy Devin at her Grangeville home the night of Sept. 30, 2021, then smothered or inflicted violence on Michael Devin early the next morning in Lewiston before burning his remains in Devin’s truck on Nez Perce Drive, according to the probable cause affidavit.

During the motion hearing, the defense called two witnesses for their argument: a University of Idaho professor, Aliza Cover, and Dr. Barbara Wolf, a medical examiner and forensic pathologist from Leesburg, Fla. The defense had the two witnesses testify by Zoom regarding their motion to rule out the death penalty on various grounds.

Cover spoke about her research into the use of the death penalty in Idaho by looking at cases that were eligible for it, how many were charged with it, then later how many went to trial and were sentenced. To be eligible for the death penalty a case needs to be a felony first-degree murder, meaning that the murder happened while another felony was taking place, such as kidnapping or burglary, or have aggravating factors such as being especially heinous, atrocious or cruel.

Cover said that of the 21% of cases that were eligible for the death penalty, 5% went to trial and 3% resulted in a death sentence. The most populous counties in Idaho — Ada, Canyon and Kootenai — had more death penalty cases than all the other counties combined.

Logsdon stated that Cover’s research showed that the death penalty cases were arbitrarily applied in the state and that, because of the aggravating factor rules for eligibility, any murder could be considered for the death penalty. He also said that it showed which county a case takes place in determines whether a case received the death penalty.

“The only places that really are and have the resources, and frankly the interest, tend to be these major counties,” Logsdon said.

Smith cited case law to show that there was no arbitrariness with these cases based on where they took place and said that the defense needed to show empirical evidence from Cover’s research, which it didn’t. Smith also argued that Cover used her own discretion in some of the cases in determining whether they were death-penalty eligible and Cover admitted there was “wiggle room” in her findings.

Wolf testified about the use of a firing squad as a means of execution. She said that if a person is shot in the heart and the heart isn’t completely disrupted it can continue to pump blood to the brain, and the brain has a reserve oxygen supply that can last for 10-15 seconds. Wolf said that in those final seconds if oxygen is still being supplied to the brain a person can feel pain. In the case of being shot in the heart, the person would still feel the pain of bleeding out, as well as skeletal fractures and lung injuries.

Logsdon used the example of a firing squad in his argument because the Idaho Legislature recently decided to use the firing squad as a method of execution if lethal injection wasn’t available. Logsdon said it was a very likely scenario because the Idaho Department of Correction has had difficulty acquiring drugs for executions. He argued that it was unconstitutional to send someone to death row without knowing how they would be executed. The method of execution of a firing squad as well as not knowing the method of execution, he argued, was a violation of the 8th Amendment against cruel and unusual punishment.

“(There’s) no actual way of executing these people,” he said.

Monson asked if Logsdon knew of any case from the U.S. Supreme Court that strikes down lethal injection or a firing squad as an unconstitutional manner of execution and Logsdon said he didn’t know of any.

Smith then argued that the prosecution’s general objections in all the death penalty motions was that the death penalty hasn’t been imposed yet because the trial hasn’t taken place. Whether lethal injections are available or if Ross will be executed by firing squad are “years and years down the road from where we are today,” Smith said.

One of the other motions Logsdon argued was that Ross didn’t have a preliminary hearing and had the right to one, as well as the right to a grand jury. Monson asked if Logsdon was arguing that every case should have a grand jury and Logsdon replied that every infamous or capital crime should have a grand jury, so the prosecution isn’t the only one making the decision on what charges to bring forward.

Logsdon argued that capital-certified attorneys, those with experience in death penalty cases, should have been appointed to Ross from the beginning of his case to ensure that he got a preliminary hearing, even though he assumed the decision to waive the hearing was made against the advice of council. He couldn’t find any case law whether a preliminary hearing that was waived was withdrawn, but compared it to a case from the 1920s where a defendant with an inexperienced lawyer had his guilty plea withdrawn by the courts.

Coleman explained that the proper procedure was followed in regard to Ross’ case. The day of his preliminary hearing he waived his right after being questioned by the magistrate judge, who determined he made the decision voluntarily and knowingly. Smith also said that the prosecution followed the law in seeking the death penalty 60 days after Ross entered his plea.

Smith also noted the differences between the 1920s case is that Ross’ public defender at the time, Greg Rauch, was an experienced and competent attorney with felony cases and Ross voluntarily waived his right to a preliminary hearing.

“It is a little bit unusual of a situation if at the preliminary hearing the state said ‘no,’” Smith said, talking about if the prosecution objected to Ross waiving his right to a preliminary hearing. “The judge would have still accepted the waiver.”

Logsdon also discussed the death penalty process where all counties receive state funding to pursue death penalty cases and said it gives counties incentive to file death penalty charges. However, Monson said that, based on the research by Cover, that didn’t appear to be the case because bigger counties had more death penalty cases. He said, if financial incentive was the reason for pursuing the death penalty, all counties would increase their number of cases, not only the more populated ones. Logsdon said that the financial incentive shouldn’t be there regardless if the incentive is working.

Logsdon argued other motions before the court citing an international law against the death penalty. He also stated that aggravating factors don’t narrow the number of cases eligible for the death penalty and that society is moving against the death penalty.

“For all intents and purposes, it looks like the death penalty is on its way out,” Logsdon said.

Smith argued that the U.S. has the right to impose the death penalty even under international law. She also cited case law from 2015 that supported the death penalty despite societal changes and case law that determined aggravating factors aren’t unconstitutional.

Logsdon also brought up concerns about the jury, asking for a change of venue to avoid a biased jury because of media coverage. Then he questioned if removing people opposed to the death penalty from the jury would create a biased jury against Ross. Smith argued that the request to change venues is premature but can be done if it is needed. Coleman then said that if a juror states they are for or against the death penalty “they must be able to put those feelings aside and follow the law” as determined by the court. If they can’t agree to do that, then they won’t be seated for the jury.

One motion was agreed upon by the prosecution and defense regarding the use of non-statutory aggravators in the case, meaning it is an aggravating factor not required by law. Coleman noted that the prosecution is using only statutory aggravators and if that changes the prosecution will follow the proper procedures in letting the defense know.

Monson said he would review the motions, noting a large, thick binder of documents to read, and will let the attorneys know of his decisions.

Brewster may be contacted at kbrewster@lmtribune.com or at (208) 848-2297.