Appeals court to reconsider death penalty ruling

By Cy Ryan

Friday, June 18, 2010 | 2:35 p.m.

CARSON CITY – The U.S. Ninth Circuit Court of Appeals has decided to reconsider a ruling of a panel that Las Vegas killer James Harrison can't be sentenced to death.

A majority of the appeals court decided to re-hear the case decided in January this year in a 2-1 decision by the panel.

Harrison and Anthony Prentice were charged in 2002 with the murder of Daniel Miller, Prentice’s roommate. Harrison stabbed Miller, 58, the owner of American Driver Education, 128 times and carved a swastika on his back.

They received separate trials and Prentice was sentenced to a life term without the possibility of parole.

The state sought the death penalty for Harrison, but the jury in the penalty phase couldn't reach a decision on whether the aggravating circumstances outnumbered the mitigating circumstances as required to return a death sentence.

Two of the jurors said they were deadlocked between life with or without the possibility of parole. Harrison, through his lawyers, asked District Judge Valerie Adair to poll the jury. She denied the request.

The panel said Adair abused her discretion by denying Harrison’s polling request.

It said the prosecution "may not seek the death penalty at a sentencing retrial and no such penalty may be imposed by the court.” It said seeking the death penalty again would be double jeopardy since the jury did not find there were more aggravating circumstances than mitigating circumstances to warrant the death penalty."

In an order Friday, the appeals court said a majority of the members have voted to re-hear the case, but it did not give any more details.