Nevada case begins court session

Benjamin Grove

Monday, Oct. 4, 1999 | 10:59 a.m.

The New York Times News Service and the Associated Press contributed to this report.

WASHINGTON -- Two Nevada lawyers squared off today in the U.S. Supreme Court to argue a case stemming from a North Las Vegas murder that could affect the ability of inmates nationwide to appeal their cases to a higher court.

The case was the first that the nation's high court heard as it opened its 1999-2000 term today after a three-month recess.

The justices accepted 15 new cases in the last three weeks, bringing the total to 44 and filling their argument calendar through January.

The Nevada case was one of several that suggest the range that awaits the justices.

The case, Slack vs. McDaniel, is rooted in a 1989 incident in which 12-year-old Alanna Holms was killed in a North Las Vegas apartment. Antonio Slack, then 19, was convicted a year later of second-degree murder and sentenced to two consecutive life sentences. Slack admitted killing the girl, but said it was an accident.

Since his conviction Slack has made a complicated series of appeals in both state and federal courts.

"This could have a widespread impact," Nevada Chief Deputy Attorney General David Sarnowski said. "Whatever the court says will be used as precedent for federal law."

As part of the opening day the court also announced the disposition of more than 1,700 appeals that have accumulated during the recess, nearly all of which the justices will turn down without further review.

In action today, the court:

Justice Ruth Bader Ginsburg returned to the bench today after her surgery for colon cancer on Sept. 17. She was discharged from a Washington hospital last week with an excellent prognosis.

In the Nevada case Slack appealed first to the state Supreme Court, which dismissed the filing in 1991. He then turned to the federal court. But before his case was heard, he requested that he be allowed to return to state court to exhaust new appeal claims. The federal judge agreed.

Slack lost those appeals so again turned to the federal courts in 1995. A judge initially denied Slack's request for a federal attorney to represent him, but in 1997 granted the request.

In December 1997 Slack's new lawyer filed an amended appeal making a number of new claims. Among them: that prosecutors in the original trial had improperly introduced that Slack had a sexual relationship with Holms.

A federal judge dismissed the appeal, saying that Slack had not introduced his new claims the first time he appeared in federal court. The 9th U.S. Circuit Court of Appeals in San Francisco affirmed the lower court's decision.

In February 1999 the Supreme Court agreed to hear the case in an attempt to clarify the complex habeas corpus issue at stake -- are inmates like Slack entitled to have a federal judge hear their appeal?

Yes, say Slack's lawyers, court-appointed federal public defenders based in Las Vegas. They argued today that the federal court has never actually heard and ruled on Slack's appeals claims.

Michael Pescetta, the assistant federal public defender who made Slack's arguments today, said he was confident that precedents in similar cases were on his side.

"It's our position that the 9th Circuit Court is out of step," Pescetta said Saturday, a day after arriving in Washington. Sarnowski, of the Nevada Attorney General's office, disagreed. He argued that inmates cannot continue to tie up the court system with appeals. He called Slack's appeal abusive.

"It wastes our resources, it results in multiple filings that we have to respond to and eliminates finality," Sarnowski said last week as he prepared in the downtown Washington offices of the National Association of Attorneys General.

The opposing attorneys were both allowed 30 minutes to make their case today. They focused mainly on technical arguments surrounding the legal theory of habeas corpus.

At one point Pescetta discussed the definition of "exhaustion claims" as they apply to the federal court system. "Exhaustion refers to go exhaust your claims in state court and our doors will be open when you return."

"We in essence said enough is enough," Sarnowski argued told the justices.

The Supreme Court is expected to rule on the case no later than June.

Both Sarnowski and Pescetta have argued cases before the nation's highest court before -- Sarnowski has been here one other time; Pescetta twice. Most lawyers never have a chance to present a case to the nine-member court.

The justices peppered the two attorneys with questions throughout their arguments, almost from the moment they started.

"The questions that they ask of both sides are piercing, and oblique enough that you don't know where they are going," Sarnowski said. "I said what I needed to say."

Pescetta said he also got in all of his arguments, but neither attorney would venture a guess on which the way the ruling would go after hearing the justices' questions and comments.

"You don't handicap on the basis of what anyone says," Pescetta said. "Now we just have to wait."