ACLU forum

State Public Defender Diane Lozano speaks during the forum hosted by the ACLU of Wyoming on Tuesday, Jan. 14, 2020, inside the Laramie County Library in Cheyenne. The forum was part of the campaign to end the death penalty in Wyoming. 

CHEYENNE – When people talk about the death penalty in Wyoming, if they’re opposed to it, one of the first things they bring up is the cost. It’s nearly undisputed that executing someone and trials in death penalty cases are expensive.

At its death penalty event Tuesday evening at the Laramie County Library, the American Civil Liberties Union also brought up the cost of the death penalty. But it was a different kind of cost – the human cost.

Sitting at a table in front of about 20 people, state Public Defender Diane Lozano, League of Women Voters lobbyist Marguerite Herman and St. Joseph’s Catholic Church Deacon Tom Niemann formed the panel to discuss why they’re opposed to the death penalty. The forum was lead by ACLU Wyoming Director of Campaigns Sabrina King.

One of the aspects Lozano brought up is just because Wyoming hasn’t executed someone since Mark Hopkinson in 1992 doesn’t mean the penalty isn’t being used. She said Wyoming needs to redefine the word “use” when it comes to the death penalty.

Since 2006, 14 death penalty cases have occurred in Wyoming, and despite Wyoming having a 16% population of people of color – 43% of capital cases have been brought against people of color. This means people of color are roughly 2.6 times overrepresented in death penalty cases based on population.

“I think the other myth that we have heard is that we use our death penalty judiciously, and unlike other states, unlike other places, we understand how to use the death penalty properly,” King said. “And I think what we would argue, and what I think the data argues, is that there is no way to use the death penalty properly. It is inherently problematic. It is inherently racist. It is inherently used against people who are from a lower socioeconomic status.”

As well as being inherently racist, it’s also important to consider how the death penalty affects those who have to work with people who are facing the death penalty.

Lozano told the story of the first death penalty case she ever worked on fresh out of law school. She recalled the individual she was defending wasn’t much older than she was at the time.

Part of being a defense attorney in a death penalty case is getting to know the client’s life story, and learning how that person made the decision that led to someone’s death. Lozano said in Wyoming, someone can face the death penalty for felony murder and first-degree murder with premeditated malice.

“And when you do that, you get to know a person, you get close to them,” Lozano said. “I hear lawyers say that distance is healthy, and with death penalty work, there’s no such thing. You get attached to this person. He becomes about part of who you are, and a part of your life story.”

When a lawyer is standing beside their client in a death penalty case, waiting to see if the jury has decided whether they live or die, it changes a person’s DNA, she said.

“I tell my lawyers now that I’d never make somebody do a death penalty case because it affects your soul,” she said.

Lozano recalled that before working a death penalty case, when she was younger, she didn’t have any gray hair. After the case, she remembers noticing new gray hair on her head.

For lawyers, working a death penalty case changes who they are, she said. She said there are some lawyers who worked a death penalty case and quit being lawyers. A lot of lawyers face secondary trauma from working those cases.

But it’s not just the lawyers who work the cases who are affected, it’s also the lawyers’ staff. She remembered almost 28 years ago when Mark Hopkinson was executed. Lozano pointed to her former executive assistant, who was sitting in the audience, and noted they were the one who had to answer the phone when the governor’s office called to say the execution was moving forward.

Of the people who worked that case, some died from health problems they developed due to the case, she said.

Another factor to remember is the jurors who have to sit on a death penalty trial and decide if someone lives or dies.

“Twelve average citizens that look a lot like you have to make that decision,” Lozano said. “And they’re instructed by law, by the Wyoming and the federal Constitution, that whatever sentence they reach will be the sentence that is carried out. So they’re told, it’s on you. It’s on your soul. Whatever you decide is something you have to live with, and maybe answer to your maker for someday.”

When there is a death penalty case, the jurors have to essentially make two decisions: if the defendant is guilty of murder, and then whether the death penalty should be carried out.

As jurors walk into the courtroom after reaching a verdict, Lozano recalls seeing a lot of emotion on their faces, a lot of tears in their eyes. She tells herself sometimes that it’s because they’re angry and they’re going to kill her client.

She said they’ve been asked whether to kill another human being.

“But I think what I see is fear,” she said. “I think what I see is the emotional responsibility that their government has placed on them.”

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