Condemned man gets new chance

Monday, June 2, 2003 | 9:52 a.m.

CARSON CITY -- In a 4-3 decision, the Nevada Supreme Court has granted a new penalty hearing for a man who has been on death row for 15 years for the rape and murder of a woman in Las Vegas.

The court said the jury was not properly instructed in the case of Richard Haberstroh. Haberstroh was convicted of kidnapping 20-year-old Donna Kitowski from a grocery store parking lot, robbing her, sexually assaulting her and strangling her in 1986.

A District Court jury found five aggravating circumstances to justify the death penalty for Haberstroh, who is now 48. Haberstroh did not want to present any mitigating circumstances at the penalty hearing.

The full court agreed that the conviction should be upheld, but the majority sided with District Judge Michael Douglas that a new sentencing was warranted.

One of the aggravating circumstances found by the jury in the penalty hearing was depravity of mind.

Justice Bob Rose, who wrote the majority opinion, said the jury was not given the proper guidance that there has to have been torture, mutilation or other serious or depraved physical acts beyond the act of killing itself to merit a finding of depravity of mind.

The Clark County district attorney's office argued there were four other aggravating circumstances to justify the death sentence: The murder was committed during a robbery; it also involved first-degree kidnapping and rape; and Haberstroh had previously been convicted of a felony involving the threat of violence.

But Rose said he was not convinced the jury would have returned the death penalty without the finding of depravity of mine. He said the prosecution repeatedly, in closing arguments, used the words "depraved," "vile," "wanton," "perverted" and "evil."

Haberstroh now wants to present mitigation to show it outweighs the aggravating circumstances and that he does not merit the death penalty.

Agreeing with Rose were Chief Justice Deborah Agosti and Justices Miriam Shearing and Bill Maupin.

Justice Myron Leavitt, who wrote the dissent, said the prosecution did "not emphasize depravity of mind more than any of the other four aggravators." He said the use of those words in closing arguments by the district attorney's office was not improper.

Leavitt said the four remaining aggravating circumstances justify the death penalty. He said Haberstroh chose not to present mitigating evidence, "and his belated offer of such evidence is of no consequence to the decision before this court."

Agreeing with Leavitt were Justices Nancy Becker and Mark Gibbons.

Also, the full court issued an admonishment to Haberstroh's appeal lawyers, Assistant Federal Public Defenders Michael Pescetta and Elizabeth Brickfield, for filing 52 volumes and 11,384 pages of "irrelevant material" with the court.

The court said the two lawyers violated the Nevada rules and "needlessly burdened this court and its staff" with the irrelevant documentation.

Pescetta and Brickfield said the massive filing was necessary to preserve the record for future proceedings in federal court.