Wednesday, Feb. 12, 2003 | 9:45 a.m.
CARSON CITY -- A man who kidnapped, raped and murdered a 20-year-old woman in Las Vegas in 1986 should have his conviction overturned or at least have his death sentence reconsidered, a federal public defender told the Nevada Supreme Court on Tuesday.
Michael Pescetta, an expert in handling death penalty cases, urged the justices to overturn Richard Haberstroh's conviction or uphold the ruling of District Judge Michael Douglas, who said an error was committed when Habestroh was sentenced to death.
Haberstroh kidnapped Donna Kitowski from a supermarket parking lot, drove her to the desert and raped and strangled her.
Pescetta argued the guilty verdict should be overturned because Haberstroh had an IQ of 78 and had suffered from fetal alcohol syndrome. If the court is not willing to go that far, it should at least allow for a new penalty hearing, Pescetta said.
After finding Haberstroh guilty, the jury went on to find that depravity of mind was one of the elements in the crime and that it was an aggravating factor. Douglas ruled the jury to be in error, and he said the mistake merited a new penalty hearing.
Juries, in death penalty cases, must weigh aggravating circumstances against mitigating circumstances in setting the penalty.
Clark Peterson, capital case coordinator for the Clark County district attorney's office, agreed with Pescetta that depravity was an improper aggravating circumstance but said the death sentence should not be overturned.
Peterson told the state Supreme Court justices Tuesday that there were four other aggravating circumstances that merited the death penalty and no mitigating circumstances.
Pescetta also said the death penalty ruling should be vacated because of the introduction by the prosecution at the penalty hearing that Haberstroh concealed a piece of metal in his pocket at the Clark County jail.
He said the prosecution stressed this, suggesting Haberstroh was planning an escape. But he said the public defender representing Haberstroh at the penalty hearing had other clients in the jail and he did not pursue the investigation. He said Haberstroh was holding on to the metal for another inmate.
Peterson said Haberstroh was involved in two other prison escapes. And the trial judge did not allow the prosecution to introduce evidence of the two other escapes, he said.
The state's highest court heard the arguments from both sides and it's unknown when a ruling will come.
archive
