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 That fact plays a central role in the defense's argument that New Hampshire's capital murder law is outdated and unfair.
The state has executed just three people over the last century. The last was in 1939, with the hanging of Howard Long of Alton. Long was convicted of molesting and murdering 10-year-old Mark Neville Jensen.
Eight people have been charged with capital murder in New Hampshire since the 1950s. Only two were sentenced to death, but they were eventually freed after the U.S. Supreme Court in 1972 ruled the federal death penalty unconstitutional.
New Hampshire's current capital murder law was drafted a year earlier. The Supreme Court reversed itself in 1976, effectively putting the law back on the books.
Prosecutors charge Brooks qualifies for the death penalty for two reasons. He allegedly committed murder for hire and kidnapping in the commission of a murder.
Brooks allegedly began planning the murder in June 2005 while living with his family in Las Vegas. He returned to his hometown of Derry with a contractor he hired, Joseph Vrooman of Whitwell, Tenn. He recruited three others to lure Jack Reid, 57, of Derry to an isolated horse farm in Deerfield, police said. All five face murder-related charges.
Brooks may argue self-defense, suggesting Reid could have been armed when he was lured to a barn where Brooks was waiting, according to court documents released yesterday.
Reid did a moving job for Brooks in the fall of 2003. Brooks later accused Reid of stealing items, including an urn that held the ashes of Brooks' father, according to court documents.
Vrooman, now viewed as a star witness, was allegedly paid $10,000 for his role in the hit. Michael Benton, 31, of Manchester was offered money for the murder, court documents said. Brooks' son, Jesse, is charged with recruiting Benton.
Bruck said the judge should weigh the discovery nationally of those wrongly convicted in death penalty cases - and that should be enough to strike down the law.
Assistant Attorney General Karen Huntress said New Hampshire's death penalty may be rarely used, but remains "alive and well" in the state. She said people were better informed about the law than Bruck said.
The Legislature rejected a proposal to repeal capital punishment last spring.
"If people were up in arms about the death penalty, they could have repealed it at that time," Huntress said.
Some lawmakers have said they will submit a similar bill next year. Death penalty opponents have to wait a year because lawmakers can't file failed bills in consecutive sessions.
Throughout yesterday's hearing, Brooks sat with his hands folded, calmly watching his lawyers. At times, he could be seen reading the written pleadings Bruck made for his arguments. Gone were the jail fatigues he's been wearing since his incarceration in November 2006. He wore a charcoal gray suit and powder blue tie.
Lynn said he was inclined to agree with the state's argument that the death penalty law is valid. He will issue an official decision in the coming weeks.