Dead of Night (21 page)

Others questioned what outcome might be seen as worse: being attacked with no means of defense, or having at least the chance of fending off the attacker with a concealed handgun.

John Lott, a gun advocate, pointed out that seventy schools, at that time, allowed faculty and students with permits to carry weapons; and in those schools, not one single permit holder on those campuses had been involved in a gun accident or crime. The gun opponents’ predictions of disaster, he said, had simply not occurred. At that time, more than a dozen other states were considering lifting their prohibition of carrying guns on campus—with Texas, Idaho, and Florida actively debating the issue. Clearly, other states besides Nevada had issues they were debating, and time would tell how many of those states would support the passage of Katie’s Law or the allowing of legally carried concealed weapons on campus, and how many would not.

Schneider was intent on blocking the bill when it made its way to the Nevada Senate, but Amanda Collins remained just as determined to continue speaking out at every opportunity to promote the issue. Whenever and wherever she was needed to go, she testified about her deep conviction that all people deserved a chance to defend themselves.

“The criminals who are intent on committing a crime don’t care about what the rules and regulations are,” Amanda said, adding that the only ones who did respect the rules were the law-abiding citizens, who should be permitted to carry protective firearms.

“I don’t understand why good, responsible people are trusted to be able to have their firearms across the street, and as soon as they cross an arbitrary line, they somehow lose all reason and ability to be able to be competent with that responsibility,” she said. “It makes no sense to me at all.

“Why does it take somebody being assaulted in order to be able to defend themselves?” Amanda asked, referring to getting permission finally from the university president to carry her weapon on campus.

“Is it because I was assaulted at gunpoint in a gun-free zone? The unanswered question of my life is, and will remain to be, ‘What would have changed if I was carrying my weapon that night?’ It is a question that continually keeps me awake at night as I replay the worst ten minutes of my life, over and over again, with several different possibilities.”

It is a certainty that two of those possibilities Amanda lay awake at night, considering, were how things could have been so very different—for Virgie and Brianna—if she’d had her handgun with her that night in the parking garage.

Chapter 27

On September 16, 2010, the BBJF held a “Spread Safety” event in downtown Reno featuring live local music, gourmet food, drink specials, and, most important, self-defense demonstrations and safety talks from Reno police officers and UNR representatives. The event, the foundation said, was a part of its mission of keeping the community safer through constant education. It was held at the Spread Peace Café. Like all the other events that had thus far been held by the foundation, it drew a large and enthusiastic crowd and was viewed as being very successful in promoting safety awareness.

On October 14, during a “Tapas and Teddy Bears” luncheon fund-raiser at the Eldorado Hotel Casino, which benefited the foundation, Nevada’s Republican governor Jim Gibbons proclaimed the day, October 14, as “Brianna Denison Day.” The proclamation said that its purpose was to create awareness against violent crime and recognize crime victims and their families.

Keynote speaker at the event was Democrat Nevada attorney general Catherine Cortez Masto, a staunch supporter of the Bring Bri Justice Foundation. She said that Nevadans must not forget the impact that violent crime makes on the surviving family members of victims. The Denison family, she said, had been instrumental in creating the public’s increased awareness of DNA collection and the laws surrounding it.

If a law requiring DNA collection of all those individuals who were placed under arrest for violent crimes had been in effect before Brianna’s kidnapping and murder, Masto said, her murder would have been solved sooner because Biela would have been linked by DNA evidence to the December 2007 sexual assault, which he was eventually convicted of—the attack that took place in October 2007 had not been reported at the time and his DNA evidence had been cleaned away by the victim.

Biela had been arrested initially for felony assault in the incident that had occurred with his ex-girlfriend years earlier. The charges were subsequently reduced to a lesser offense, which did not require DNA collection on conviction. If that reduction hadn’t happened, and his DNA had been attained, there is a strong chance that he would have been arrested and incarcerated after his rape of Virgie Chin.

Attorney General Masto supported the foundation in its efforts to pass legislation requiring DNA submission to see if those arrested for all felonies were linked to any other unsolved crimes. In this manner, criminals like James Biela would not slip through the cracks and go on to commit further offenses.

The foundation experienced a very busy and productive fall season, with fund-raisers, events, and excellent publicity. In late October,
Dateline NBC
aired a follow-up episode on the Brianna Denison case. A previous episode had covered the investigation of Brianna’s disappearance prior to Biela’s arrest, when the authorities were still searching for the killer. The follow-up, according to
Dateline
correspondent Josh Mankiewicz, took viewers from James Biela’s identification as the likely killer, his arrest, and through the trial to the final verdict.

 

 

While efforts were under way to allow guns on campus and DNA testing in felony arrests, Biela’s attorneys were already busy preparing their presentation to attempt to get either a new penalty hearing before a newly impaneled jury, or to have his death sentence set aside in favor of a sentence of life without possibility of parole. Judge Perry had entered his written judgment on August 18, 2010, along with an Order Staying Execution of the Judgment of Death Pending Direct Appeal. Both were filed that morning, and a Notice of Appeal was filed that afternoon by Biela’s appeal attorneys.

Those actions began the long and often very tedious process of Biela’s first appeal; after this initial appeal was concluded, there would be others. The appeals process in death penalty cases could continue for years, and would result in costs to the state of hundreds of thousands of dollars, paid by the taxpayers of Nevada.

In fact, the first round of appeals before the Nevada Supreme Court alone could stretch out for as long as six years. Then, as the case made its way into the federal appeals system, where it could last for a far longer time, it would allow Biela to challenge his conviction for decades to come. This long, drawn-out procedure, many people contended, was unfair to the victims’ families, law enforcement, and the judicial system, while others claimed that the process was essential to guaranteeing the death row inmates’ constitutional rights. However, it also forced them to live out their lives under “inhumane conditions” on death row. The current average amount of time spent on death row by inmates in Nevada is over seventeen years, with one inmate’s time already well over thirty years.

ACLU staff attorney Lee Rowland said that the isolation of the Ely State Prison and its conditions on death row had made Nevada the leading state for voluntary executions. Rowland said that it amounted to state-sponsored suicide. Over the past thirty-five years, eleven out of twelve prisoners who have been put to death in Nevada have been voluntary executions. These were the executions of inmates who had given up on their appeals process and had chosen to die rather than continue living as death row prisoners. Rowland said her organization was disturbed by that number; she said that it had begun to look more like a human rights issue.

 

 

A timeline of Biela’s first appeal ran as follows:

Despite the avalanche of legal paperwork, it must be noted that this was only Biela’s first round of appeals. The process would then move on to the Washoe County District Court. If unsuccessful there, he and his defense team could take many other routes of appeal that might well last for the rest of James Biela’s natural life, which he would be spending in prison.

As several people had pointed out during and after the trial, a sentence of death did not necessarily mean that the condemned prisoner would ever be executed. Far more convicted murderers would die of natural causes on death row while waiting on appeals than would ever be subjected to execution by lethal injection. The last such execution had been held in 2006, when inmate Daryl Mack had been put to death for the murder of his wife, Charla Mack. In fact, as the ACLU had pointed out, most who had been executed in Nevada in recent years had been put to death by their own request as opposed to spending their lives in prison.

In the text of Biela’s many motions, arguments, and appeals, the various points raised by his defense involved complaints about several sections of the trial: the penalty phase, the jury instructions, and the combination of the three cases into one trial. One of the first items to be addressed in the lengthy and detailed opening brief, which was filed on March 28, 2011, was the defense’s belief that the charges in the case should have been severed. The five charges in the case involved three separate victims, and the defense asked that the charges be separated into three individual trials. The request was based on the argument that the events involving each of the individual victims were separate from one another and were not part of a common scheme or plan, and were also not cross-admissible at trial.

The failure to sever these charges into separate trials resulted in a substantial and injurious impact on the jury’s verdict because of confusion of evidence between the cases and the piggybacking of a weaker case onto a stronger one,
claimed the defense.

The brief went on to claim that the evidence in Biela’s conviction on count 1—the sexual assault of Amanda Collins—had been insufficient to support the conviction that had been returned by the jury. The conviction rested entirely on the testimony of the victim, with no other collaborating evidence presented. The argument continued to say that given the circumstances surrounding the Brianna Denison investigation, Amanda had found herself “swept up” and felt that she was a part of something “bigger than herself.” For that reason, the defense claimed, her identification of Biela as her assailant, following the very public arrest for Brianna’s murder, would have to be seen as being suspect and unreliable. The fact that Amanda found closure in identifying Biela as the man who had raped her:
[It] should not equate to a finding that her identification was correct.

The brief also criticized Judge Perry’s decision to allow jurors to ask questions throughout the trial.

Not every criminal trial is appropriate for juror-inspired questioning, even when the defense acquiesces to the process,
the defense stated. The defense team said that without a change of venue or severance into three separate cases, the case was not an appropriate case in which to enlarge the jury’s traditional, neutral role of fact finder. As a result, the brief said, there was an abuse of discretion that had affected Biela’s right to a fair and impartial jury.

When one of the jurors asked Detective David Jenkins for his opinion on why Biela would try to buy a gun if he already had one that he had used in Amanda’s assault, his defense counsel had moved for a mistrial on the basis that the form of the question made it appear that the juror had already decided his guilt on that charge. To determine whether this was true, Judge Perry questioned the juror, asking, “Anything about this note that we should be concerned about as indicating that you have made your mind up about one of the ultimate issues in the case, specifically whether or not the defendant is guilty of the attack on Amanda Collins?” The brief stated,
[This was a] poorly worded, woefully inadequate and closed question that did not get to the heart of the matter. Thus, Judge Perry’s denial of the motion for mistrial, based on the juror’s response, was an error.