Prosecutors petition high court for death penalty reversal

Monday, Feb. 7, 2005 | 11 a.m.

CARSON CITY -- Prosecutors rarely ask for reconsideration from the Nevada Supreme Court when it upholds the death penalty for a killer.

But the Washoe County District Attorney's Office has filed a motion with the court to rehear or reconsider its decision in affirming the death penalty for Robert L. McConnell.

The court, on Dec. 29, ruled that in some murder cases that a felony committed with the murder cannot be used as an aggravating circumstance to merit the death penalty. Its unanimous decision said the effect of the ruling will be "so slight" that it will only "eliminate death eligibility in a few cases of felony murder."

There was no mention in the court's order whether its ruling was retroactive, but it said it did not apply to the McConnell case.

Prosecutors across the state were taken aback by the ruling, saying it gave a lot of the 78 people on death row in Nevada new grounds for challenges.

Appellate Deputy District Attorney Terrence P. McCarthy, in his request for reconsideration, said the state's high court violated the rule of due process because he was never given notice or an opportunity to be heard on the issue. He said he should "receive decency and fair play from the court."

Chief Justice Nancy Becker, in an order signed Feb. 4, has given Deputy Public Defender Cheryl Bond 20 days to respond to McCarthy's complaint. Becker said Bond's response could "assist the court in resolving the issue."

McCarthy, in his petition for reconsideration, also suggested that if the decision stands, an appeal may be made to the U. S. Supreme Court.

He said the Nevada court has "crossed the line" in its decision.

"Those who commit those certain crimes knowing that someone is going to die, are eligible and might get the death penalty" and the court should not be changing that, he said.

He said the court is going against a prior decision in which it allowed a felony committed with the murder to be used as an aggravating circumstance.

But the court, in its unanimous decision on the McConnell case, said the ruling "has no effect in a case where the state relies solely on a theory of deliberate, premeditated murder to gain a conviction of first-degree murder. It can use the appropriate felony.

"But in a case where the states bases a first-degree murder conviction in whole or part on felony murder to seek a death sentence the state will have to prove an aggravating circumstance other than the one based on the felony" committed during the killing.

McConnell pleaded guilty to murder and burglary in the death of Reno resident Bran Pierce who was shot 10 times and stabbed three times.

In this case, the charge of burglary was used as an aggravating circumstance to justify the penalty of death.

In the McConnell case, he pleaded guilty both to the killing and the burglary. He had staked out the house where Pierce and McConnell's girlfriend were living then broke into the home.

After shooting the victim, McConnell tied up his former girlfriend, sexually assaulted her and then forced her into a car. He drove to California where she escaped.