Killer loses appeal in death penalty case

By Cy Ryan

Tuesday, Feb. 15, 2011 | 3:06 p.m.

CARSON CITY – In a 6-5 decision, a federal appeals court ruled today that killer James M. Harrison could be subject to the death penalty for the fatal stabbing of a driving instructor in Las Vegas in 2002.

The court rejected the claim of Harrison that the first sentencing deadlocked on his penalty and another jury couldn't return the death penalty.

Harrison was convicted of stabbing Daniel Miller 128 times and then drawing a swastika on his back. Miller’s partner in the crime, Anthony Prentice, received a life term without parole from a different jury.

Miller, 58, was the roommate of Prentice and the victim was also the owner of American Driver Education.

The jury, after convicting Harrison, deadlocked on the penalty phase. Harrison, through his lawyers, asked to poll the jury to see if they unanimously had rejected the death penalty, but District Judge Valerie Adair rejected the polling request.

Harrison appealed to the Nevada Supreme Court and the Ninth Circuit Court of Appeals. In its first 2-1 ruling the federal appeals court said Adair was wrong and held the state could not seek the death penalty in a new hearing.

The state was granted its request for reconsideration.

In the ruling Tuesday the federal appeals court, in a decision written Judge Milan Smith Jr., said Adair didn't abuse her discretion or subject Harrison to “double jeopardy by declining to poll the jury before discharging it because it was unable to reach a verdict.”

The dissent, written by Judge Sidney R. Thomas, said “By all indications, the jurors in James Harrison’s capital trial had decided to acquit him of the death penalty.”

He said the jurors informed Adair that they were deadlocked between life with and without parole.

Thomas said, “We will never know with certainty what the jury would have answered if asked. But we do know this: Harrison’s chance of a likely acquittal on the death penalty left the courthouse with the jurors.”

Harrison’s penalty hearing is pending.