Another Justice Wants Capital Punishment Abolished Dolliver Registers Opposition, But Still Rejects Killer’s Death Penalty Appeal

The conviction and death penalty of James Brett, who shot and killed Kenneth Milosevich in the victim’s Vancouver home, was upheld by the state Supreme Court Tuesday in an opinion by a justice who voiced strong opposition to the death penalty.

In a special concurring opinion, Justice Jim Dolliver said it was his duty to uphold the state’s death penalty law.

“However,” Dolliver wrote, “I agree with the words quoted by (U.S. Supreme Court) Justice Blackmun … who said ‘the infliction of death is so plainly doomed to failure that it - and the death penalty - must be abandoned altogether.’

“Although I do not question my duty, I write this separate concurrence to state my objection to the death penalty in principle and to express the hope that some day we will eliminate the death penalty and be saved from cries of vengeance, revenge, or justice and thus become a more truly civilized community of citizens.”

Dolliver is the second member of the court in less than a week to express opposition to the death penalty.

Justice Robert Utter announced his resignation last Wednesday saying he could no longer stomach sitting on death penalty appeals.

“I have reached the point where I can no longer participate in a legal system that intentionally takes human life in capital punishment cases,” Utter said in his letter of resignation.

Brett, 24, had challenged his death sentence on grounds that the state did not prove its case for aggravated first-degree murder.

Under Washington law, the death penalty can be imposed only for aggravated first-degree murder, a category that covers special circumstances including more than one victim, the death of a law-enforcement officer or the commission of another felony. The only other penalty for aggravated first-degree murder is life in prison with no hope of parole.

In the Brett case, Clark County Prosecutor Art Curtis charged that Milosevich was murdered while Brett was attempting to rob the victim and his wife at their Vancouver home Dec. 3, 1991.

Brett’s attorney, Tom Phelan of Vancouver, argued that attempting robbery does not count as an aggravating circumstance though it would support a conviction of felony murder, which does not allow for a sentence of death.