May 7, 2012 Source : http://www.lasvegassun.com
A convicted killer does not have to show by a preponderance of the evidence that he does not deserve a death sentence, a defense lawyer says.
John R. Petty of the Washoe County public defender’s office told the Nevada Supreme Court that it should nullify the death penalty given murderer James Biela because a wrong instruction was given to the jury during the penalty phase of the trial in Reno.
But Terry McCarthy of the Washoe County district attorney’s office said each juror makes his or her own decision. And the death penalty should be upheld.
But Justice Kristina Pickering said there could be confusion in the jury instruction.
On Jan. 20, 2008, 19-year-old Brianna Dennison disappeared while sleeping on the couch of the home of a friend in Reno. Her body was found Feb. 15 in a field. She had been raped and strangled with a pair of thong panties.
Petty, the chief appeal deputy in the public defender’s office, said the jury was wrongly instructed that the mitigating circumstances must outweigh the aggravating circumstances to eliminate the possibility of the death penalty.
But Justice Michael Douglas noted the defense at the trial never objected to the jury instruction. Nor did the defense attorney argue against it in his closing argument.
But Petty said the court should either grant a new penalty hearing or reduce the death sentence to life in prison without the possibility of parole.
Deputy District Attorney McCarthy told the court there was no requirement at trial that the death penalty be imposed. He said it was a moral judgment by the juror.
In his brief to the court, McCarthy quoted the instruction as saying, “If you find unanimously and beyond a reasonable doubt that at least one aggravating circumstance exists and each of you determines beyond a reasonable doubt that any mitigating circumstance do not outweigh the aggravating, the defendant is eligible for a death sentence.”
The court took the arguments under submission.
Biela is one of 82 men on death row in the state prison in Ely.
There has not been an execution by lethal injection in Nevada since Daryl Mack was put to death on April 26, 2006.