New penalty hearing ordered for condemned man

Tuesday, Feb. 10, 2004 | 11:29 a.m.

CARSON CITY -- The Nevada Supreme Court today ordered a new penalty hearing for death row inmate Marlo Thomas, convicted of killing two employees during a robbery of a restaurant in Las Vegas in April 1996.

The court agreed with Thomas that his trial lawyers were ineffective in failing to object to an incorrect instruction given to the jury.

Thomas was convicted of the fatal stabbing of Matthew Gianakis and Carl Dixon at the Lone Star Steakhouse, where Thomas formerly worked as a dishwasher, during a robbery.

Thomas admitted he killed the two men but said it was in self-defense.

At the penalty hearing in 1997, the jury was given an instruction that the state Board of Pardons had the power to modify the sentence of death or life without possibility of parole to a sentence to allow for parole.

The court, in its unanimous decision, said the law was changed two years before, in 1995, to prohibit the pardons board from reducing the sentences to allow for parole.

The court said there was a "reasonable probability that jurors mistakenly believed that Thomas could eventually receive parole even if they returned sentences of life in prison without parole and that this belief contributed to their decision to render verdicts of death."

The court added, "We conclude that Thomas' counsel were ineffective in failing to object to an incorrect instruction on sentence commutation at the penalty phase of his trial and that a new penalty hearing is required."