It's an argument Judge Robert Lynn will hear again and again over the next several months in the state's first such trial since 1982.
Arguments against the death penalty began yesterday in Rockingham County Superior Court as the state outlined why Brooks should qualify for New Hampshire's most serious punishment. The petition, filed yesterday, was not available from the court.
Yesterday's hearing provided a glimpse of what lawyers will debate between now and when Brooks, 55, of Las Vegas goes to trial in August.
"It's an artifact of the pre-exoneration era," said David Bruck, one of Brooks' attorneys.
He said the state's death penalty law doesn't take into account several constitutional protections guaranteed by the state constitution.
Bruck is a nationally renowned death penalty opponent. He is one of five lawyers now working for the multimillionaire businessman, formerly from Derry.
Bruck is perhaps best known for defending South Carolina mother Susan Smith, who murdered her two young sons in 1991. Bruck won her appeal before the U.S. Supreme Court that ultimately spared her from the death penalty. Smith is now serving a life sentence.
Yesterday, Bruck said Brooks could get only jurors who support the death penalty, which could unfairly favor a conviction or death sentence.
State prosecutor Michael Lewis said that wouldn't be the case. Jurors are routinely called upon not to interject their personal feelings, but to follow the law. Lewis said a death penalty case would be no different.
"It is a possibility you could impanel a juror who is against the death penalty, and can apply the law," Lewis said. "If there's a juror who says, 'I can't follow the law,' then that's grounds for dismissal (from the jury) in any case."
Unlike other murder defendants, Brooks would have more chances under the law to challenge evidence and have aspects of his case barred from his trial, Lewis said.
Bruck said the judge should consider whether the capital murder law is valid because it's been rarely tested or used. That fact plays a central role in the defense's argument that New Hampshire's capital murder law is outdated and unfair.