Appeals court bars death penalty for Las Vegas killer

By Cy Ryan

Tuesday, Jan. 5, 2010 | 6:28 p.m.

CARSON CITY – In a 2-1 decision, a federal appeals court has ruled that Las Vegas killer James Harrison cannot receive the death penalty as punishment for his fatal 2002 stabbing of a Las Vegas driving instructor.

Harrison was convicted of first-degree murder in the death of Daniel Miller, 58, who owned American Driver Education in Las Vegas at the time of his death.

Harrison stabbed Miller 128 times and carved a swastika into his back. The prosecution sought the death penalty but the jury could not reach a decision on the penalty.

Defense lawyers asked District Judge Valerie Adair to question the jury to determine if the members had decided whether aggravating factors outweighed the mitigating material.

To merit the death penalty the aggravators must outweigh the mitigators.

Adair refused to allow the questions and declared a mistrial.

The 9th U.S. Circuit Court of Appeals held that Judge Adair was wrong not to permit the questioning.

Judge Stephen Reinhardt, who wrote the majority opinion, said: “A jury may have acquitted James Harrison of the death penalty. We will never know because the trial court denied his request to ask the jury two simple questions … We conclude that there was no manifest necessity to declare a mistrial without first polling the jury in order to determine whether Harrison had been acquitted of the death penalty.”

Reinhardt said reassembling the jury to question them now would not be feasible. And holding a second penalty hearing with the death penalty on the table “would violate the rights guaranteed to Harrison under the Double Jeopardy Clause.”

Steven Owens of the Clark County District Attorney’s Office said a new penalty hearing would be scheduled without the death penalty as an option. That means Harrison will face either life with or without the possibility of parole.

Harrison’s companion, Anthony Prentice, was sentenced to life without parole by a different jury. The victim was the roommate of Prentice.

Judge Procter Hug Jr. agreed with Reinhardt for the majority.

Judge Barry Silverman wrote a dissent. Silverman argued that Judge Adair “did not abuse her discretion in declaring a mistrial and ordering a new sentencing trial.” He said there “is no court case anywhere holding the constitution requires a state trial judge to ask more specific questions about the status of the jury’s unfinished deliberations in a sentencing matter entrusted to its discretion.”