Convictions in killings of children overturned

Kim Smith

Monday, Dec. 18, 2000 | 11:15 a.m.

A Clark County chief deputy district attorney said the Nevada Supreme Court could overturn as many as eight more local child homicide convictions because of changes in the law, but it isn't likely.

Over the past three weeks the Supreme Court has overturned the convictions of three people convicted of murder in the deaths of children because of faulty jury instructions.

Before the last legislative session, prosecutors could seek a murder conviction by alleging that the murder was committed during a felony or if the death was the result of premeditation, ambush, poison, torture or child abuse, Herndon said.

As a result, prosecutors in Clark County interpreted the law to mean that the act itself implied malice, or the intention of doing harm, and so developed jury instructions that said so.

However, the Supreme Court has decided that although poison and torture imply malice, child abuse does not. As a result, prosecutors must prove that people suspected of killing children during acts of abuse acted with malice.

Three cases have been overturned so far, and Herndon said there are another five to eight cases in Clark County in which the faulty instructions were given.

Herndon, who heads up the district attorney's Special Victims Unit, said that is not to say the convictions will be thrown out automatically.

In one case decided earlier this year, the Supreme Court affirmed a murder conviction because prosecutors were able to prove that there had been a pattern of abuse prior to the child's death. Therefore, the malice was evident.

Many of the Clark County cases that may come up for review involved a pattern of abuse, Herndon said.

As for the future, Herndon said the malice issue is no longer a concern.

Before the Supreme Court began reversing the convictions, the legislators changed the law.

Prosecutors can now seek a murder indictment or conviction by saying the child died during the commission of a felony, without proving malice, Herndon said. Just as a suspected robber can be indicted for murder if a store clerk dies during the robbery, a suspected child abuser can be indicted for murder if the child dies during the abuse.

Herndon said that while retrying the cases will be a burden, the families of the victims suffer the most. He has received many calls from people upset about having to go through the pain of another trial.

As for the public, Herndon said he understands their concerns.

"The general public can understand very well if DNA testing overturns a conviction," he said, but people don't like it when cases get overturned on technicalities. Many believe it is a waste of time and money.

But, Herndon added, his office is ready to take the cases back on.

"We most definitely will try these cases again, because it's unquestionable that the people we convicted are responsible for the killing of these children, and while their convictions may have been overturned, they still need to be held accountable for their actions," Herndon said.