Upcoming ruling may affect 3 Nevadans

Wednesday, April 21, 2004 | 9:25 a.m.

SUN STAFF AND WIRE REPORTS

WASHINGTON -- Three Nevada death row inmates could receive new penalty hearings if the U.S. Supreme Court decides to make a 2002 ruling on capital punishment retroactive.

The Supreme Court this week heard arguments on whether its 2002 ruling that requires juries, not judges, to decide whether someone gets the death penalty should be applied retroactively.

A decision in the Arizona case could determine whether more than 100 condemned prisoners, 13 of them in Nevada, would be eligible for new sentencing hearings.

Only three of the Nevada sentences were decided by judges because of hung juries and would certainly require new hearings. In the other 10 cases the defendants pleaded guilty, and a judges' panel was used to sentence them.

In Nevada, when a jury could not decide a death sentence unanimously or in guilty pleas to capital charges, a three-judge panel was appointed to decide the case.

The law was changed last year to require a jury to decide if the defendant should receive the death penalty. If the jury can't decide, the judge can empanel a new jury to determine the sentence or sentence the person to life in prison without the possibility of parole.

Michael Pescetta, an assistant federal public defender, said the three cases that had a hung jury "will definitely" receive new sentencing hearings if the Supreme Court holds its decision is retroactive. Gerald Gardner, chief criminal deputy attorney general, agreed.

The three inmates in question, Gardner said, are Timothy Redmen, convicted of the fatal shooting of Max Biederman; Antoine Williams, who pleaded guilty to the strangulation of William and Alice Nail, an elderly couple; and Edward Beets sentenced to death for the beating death of 71-year-old Oretha Hames, his ex-girlfriend's mother. All are from Clark County.

Pescetta he said the other 10 people on death row who pleaded guilty, would have to be judged on a "case by case basis." There is an issue of whether they waived their rights to allow a three-judge panel to sentence them.

Gardner said those 10 would probably launch further federal petitions to get the ruling extended to their cases.

The Nevada Supreme Court has ruled that the three-judge panel sentencing are not retroactive and those who pleaded guilty gave up their rights to a jury trial, Gardner said.

Two years ago the federal justices ruled that jurors must resolve whether crucial factors exist to warrant the death penalty in a case. The 7-2 decision, which arose from a 2002 Arizona case, threw in doubt death sentences in several states where judges determined the key factors warranting execution.

In the 2002 case, Ring vs. Arizona, the court said that permitting judges to decide whether a murder involved the aggravating circumstances necessary for a death sentence -- such as being especially heinous or cruel -- violated defendants' Sixth Amendment right to a jury trial.

The other states affected by the Ring decision -- Arizona, Colorado, Idaho, Montana and Nebraska -- have also changed their laws so jurors make such decisions. But the question remained whether inmates sentenced under old rules were entitled to new hearings.

Crucial to the new dispute is whether the Ring principle is considered essential to the fundamental fairness of a criminal proceeding.

The justices appeared torn on Monday. Some suggested that they viewed the Ring decision as merely a procedural change, rather than a substantive one that, under court precedent, should be applied to past cases. Antonin Scalia said it was "just a correction" and hardly a "watershed."

But other justices expressed concern that executions would go forward for those sentenced under a practice that the high court said violated the Sixth Amendment. "We will have the spectacle of someone going to his death" based on an unconstitutional scheme, Stephen Breyer said.

In a case with many twists and turns, Warren Summerlin was convicted of the 1981 rape and murder of Brenna Bailey, a bill collector who had come to his home about his wife's overdue account. Summerlin initially worked out a plea deal to avoid the death penalty but a romance (and apparent conflict of interest) between his attorney and a prosecutor wrecked that deal.