Saturday, March 4, 2006 | 7:21 a.m.
When the Nevada Supreme Court ruled in December that a common way prosecutors pursue the death penalty is unconstitutional, the justices wrote that the ruling's impact will be "so slight" that it will only affect "a few" cases.
"A few" may turn out to be 40 of the 84 inmates on death row.
The court is being asked to apply its ruling in convicted murderer Robert Lee McConnell's case to others, and defense attorneys hope the justices will make the case retroactive.
Steven Owens, chief of the Clark County district attorney's appellate office, said if the court issues such a ruling, which he said wouldn't be a surprise, it would give hope to 40 inmates on death row.
Defense attorneys involved in death penalty cases pending before the court agreed.
Lynne Henderson, a professor of constitutional and criminal law at Boyd Law School, said the ruling shows that "Nevada is simply catching up to other states in how it treats the death penalty."
"There has been a shift growing in the country in attitudes toward the death penalty because it's so haphazard and unprincipled," Henderson said.
Before the court's unanimous ruling, prosecutors had been able charge a person with first-degree murder for a killing that occurs while another felony is being committed, even if the killing isn't premeditated, and then use that crime as an "aggravator" to qualify the person for the death penalty.
That didn't help McConnell, who had pleaded guilty to first-degree murder, but it opened the door for others.
District Judge Michelle Leavitt ruled last month that Michael Mulder, who was sentenced to death for robbing and killing a 77-year-old man a decade ago, should get a new penalty phase because of the Supreme Court ruling. And she essentially said the decision should be applicable to all cases.
"I think this is the test case," attorney Christopher Oram, who represents Mulder, said. "All the people who are sitting in death row based on aggravators that are related to the crime itself will now have another shot at life."
Leavitt also ruled that Randolph Moore, who was sentenced to death for his role in killing three people in 1984, should have a new penalty phase.
Owens has appealed Leavitt's decisions to the state Supreme Court.
Last week Special Public Defender David Schieck argued before the Supreme Court that a new penalty phase should be given to James Chappell, who in 1995 killed the mother of his three children because prosecutors used aggravators that came out of the crime.
Schieck said he believes the justices will say their ruling is "retroactive to all cases."
Owens said that based on the past 20 years of Nevada Supreme Court rulings, he wouldn't be surprised if it issued a sweeping ruling that gave new hope to the 40 death row inmates in question.
"In my opinion all the justices' rulings in death penalty related cases over the years have limited the abilities of district attorneys to pursue the death penalty," Owens said. "To my knowledge there have been no rulings that have expanded those abilities."
Owens says the result of the rulings in cases such as McConnell's makes prosecutors "the scapegoat, like we are doing something wrong."
"We have no problem with the court changing the law, but when they go back and rewrite 20 years of jurisprudence I start getting afraid the public will begin to lose faith in the justice system," Owens said. "The law has to stand for something, and at the rate we're going I'm not sure what it will take for death penalty cases to stand."
Schieck took issue with Owens' contention.
"They (prosecutors) seek the death penalty in cases where the death penalty is not even remotely appropriate and to question the Nevada Supreme Court's actions in acknowledging this is totally disingenuous," Schieck said.
Clark County Public Defender Phil Kohn said in his opinion the justices "are not trying to get rid of the death penalty, but instead to make sure it is applied correctly in Nevada and only used in cases that are the worst of the worst."
Kohn, however, doesn't think the high court's ruling will be interpreted narrowly when it comes to revisiting previous cases.
Henderson said she doesn't believe the state's justices are employing an agenda to abolish the death penalty in their recent rulings, but instead trying to provide sounder guidelines.
"They (the Supreme Court justices) still uphold a great deal of death penalty convictions, but at this moment in history the high court is just trying to provide more guidance and exercise more caution in regards to the death penalty," Henderson said. "I see no evidence that the state of Nevada is going to abolish capital punishment at any point in the near future."
archive
