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PLAN WOULD FACILITATE IMPOSING DEATH PENALTY

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A bill that could make it easier to impose the death penalty in Utah passed a legislative interim committee Wednesday with only one dissenting vote - but a number of reservations.

Proponents argued that Utah's statute is unnecessarily exacting because it was written - and applied - before the U.S. Supreme Court established new death-penalty guidelines.Opponents fear that the proposed revision will require years of court tests and ultimately fail before the Utah Supreme Court, resulting in the overturning of every death sentence imposed in the meantime.

"Leave well enough alone," said prosecutors who appeared before the committee.

Sen. Kay S. Cornaby, R-Salt Lake, the sponsor of the bill, said the changes will survive constitutional challenges on the state and federal court level, a view supported by University of Utah law professor Ronald N. Boyce.

Boyce, a U.S. magistrate and a recognized expert in death-penalty cases, said Utah's law requires jurors to interpret and apply undefined standards. "No other state in the country equals those standards," he said.

To impose the death penalty in Utah, a jury that convicts a defendant must find "beyond a reasonable doubt" that the death penalty is "justified" and "appropriate" and that aggravating circumstances outweigh mitigating factors.

The statute was enacted after the U.S. Supreme Court declared the death penalty as applied by the states unconstitutional and before it established specific guidelines in 1978. Utah's law was in effect when Gary Gilmore was executed in 1977 and has been applied twice since.

Cornaby's bill would require jurors to base their decision on "the totality of the evidence, including any mitigating and aggravating circumstances" and specifically exempts them from having to apply any standard of proof - such as "beyond a reasonable doubt" - when determining whether the death penalty is justified and appropriate.

"The main thing this bill does is that it recognizes that `beyond a reasonable doubt' is an illusion," Boyce said. "It will allow a jury to use its common judgment."

When jurors are asked to weigh mitigating and aggravating circumstances and reach a decision beyond a reasonable doubt, they are being asked to weigh such things as youthfulness against multiple stabbings, Boyce said, arguing, "They can't be compared."

He also noted that federal courts have not yet addressed the question of whether the terms "justified" and "appropriate" are unconstitutionally vague.

Deputy Salt Lake County Attorney Robert Stott, who has been involved in every capital murder case the county has prosecuted in the past 15 years, said he and other prosecutors don't want to risk future cases on a bill of uncertain constitutionality.

Stott also doubts that the changes would result in more death sentences.

"Regardless of the legal standards, it has been my experience that jurors use their own standards," he said. "They look at the evidence and the circumstances and ask themselves, `Am I absolutely sure that the death penalty is warranted in this case?' "

Assistant Attorney General David Thompson said that while there may be no flaw in the proposed legislation, he fears the revision may open the door to another round of constitutional arguments that could take years to resolve.