Dead of Night (26 page)

 

 

That decision generated another flurry of orders and motions, and on August 23, 2012, Biela’s attorneys filed a petition for rehearing. The petition asked for the rehearing because, it said, the court misapprehended facts in the record concerning Biela’s objection to the giving of two penalty phase instructions, overlooked or misapplied controlling authority to Biela’s detriment, and misapprehended facts demonstrated prejudice.

In his opening and replying briefs, the petition said, Biela had held that the district court had erred when it instructed the jury that in weighing the aggravating and mitigating circumstances, it had to find beyond a reasonable doubt that the mitigating circumstances outweighed the aggravating circumstances. The supreme court, it said, had agreed with Biela, noting that the two instructions
given in this case . . . misstate law, and similar instructions should not be used in the future.

The petition also said that the “beyond a reasonable doubt” standard had been inserted in the two weighing standards at the request of the state, with the defense’s acquiescence. The word “acquiescence,” it said, was defined as “passive assent” or “agreement without protest.” The record demonstrated not acquiescence, it said, but, rather, defense objections to the proposed insertion of the language into the instructions on different grounds. The petition claimed that the record also demonstrated that an objection would have been futile.

The petition then relayed most of the record concerning the meeting held on Thursday, May 27, 2010, that pertained to the previously referenced defense objections and “acquiescence.” In attendance at that 2010 meeting were Judge Perry, Deputy District Attorneys Elliott Sattler and Chris Hicks, Gary Hatlestad and Terry McCarthy from his office; Maizie Pusich, Jay Slocum, and James Leslie from the Washoe County Public Defender’s Office; and the defendant, James Biela, as well.

The purpose of the meeting was to settle penalty jury instructions:
depending on what the jury does in Phase One.
McCarthy asked at one point during the meeting if he and the rest of the prosecution representatives could be excused for a short time to “finish discussing something.” After they returned, and Judge Perry resumed settling the jury instructions, the state suggested “a small change” to the instructions, which later became an issue in Biela’s appeal. The defense objected to the small changes, but on a different basis; the defense felt that the jury might be misled to conclude that it must find mitigating circumstances beyond a reasonable doubt. Mr. McCarthy contended that the proposed language “should only go to weighing.”

McCarthy suggested alternate wordings, and both Judge Perry and the public defender Pusich accepted one of his suggestions.

Judge Perry said he felt that her latter point was “something that can be pointed out at argument.”

Terry McCarthy then suggested that the instruction read, “The jurors need not find the existence of mitigating circumstances unanimously or beyond a reasonable doubt.” Maizie Pusich agreed to that language.

 

 

The petition claimed that it was clear that Pusich’s objection to the first proposed language was because of her desire that the jury not be confused as to its freedom to find mitigating circumstances on any basis. Her acquiescence, the petition said, was to the state’s second suggestion, which was a correct statement of law.

Accordingly,
the petition said,
the court’s use of the word “acquiesce” to characterize Biela’s stance on these improper jury instructions in the district court misapprehends facts in the record, and rehearing should be granted.

The petition stated that because jurors are presumed to follow jury instructions, the court should equally presume that the inserted language did affect the jury’s weighing process, to Biela’s detriment. The jury was twice improperly instructed that the mitigators had to outweigh the aggravators beyond a reasonable doubt. The error did not benefit Biela, but prejudice to him did occur. Additionally, the petition said, although the instructional error in the case was prejudicial to him, at the same time it actually benefited the state by placing an undue burden of proof on Biela. The state should not be allowed to benefit from instructional error of its own making, stated the petition, therefore rehearing on the penalty instruction issue should be granted.

 

 

The conclusion of Biela’s petition for rehearing claimed that the instructional error complained of in the appeal was so fundamental to notions of due process and fairness that it could be considered harmless. The instructional error in this case, it claimed, resulted in a clear misstatement of the law. So clear, in fact, that the court had instructed:
Similar instructions should not be used in the future.
The court should not just look to correct future error, said the petition. The two weighing instructions should not have been used in this case, and this court must, on rehearing, reverse the jury’s sentence:

This was submitted in August 2012.

Chapter 32

On October 15, 2012, Tracie Lindeman, the court clerk of the Nevada Supreme Court, filed a clerk’s certificate that certified that the following judgment was full, true, and correct:

James Michael Biela’s first round of appeals in the Nevada Supreme Court had come to an end.

Chapter 33

Now that James Biela’s first round of appeals to the state supreme court had been denied, the next move to be made by his attorneys on his behalf would be the filing of a petition in federal court. His appeal to that court would contain all the same issues that he had claimed in his first state appeal round, very likely with several other issues added, which could include any number of other complaints. It was also to be expected, thanks to some controversial legislation, that the petition would include the allegations that both his trial and appeal lawyers had failed to do their jobs satisfactorily, thus his loss of the cases and the initial series of appeals.

In 1991, a bill had been passed that gave death row inmates the right to have lawyers to assist with the preparation of appeals. Six years later, the Nevada Supreme Court ruled that those lawyers must be capable if the legislature was going to make the right to legal help for death row inmates a mandatory requirement. Because of this law making the right to legal counsel a requirement, many prosecutors and judicial officials claimed that the time for appeals had inadvertently been extended for as long as another decade. Death row inmates could claim ineffective representation by their first postconviction attorney when they made their second postconviction appeal, and those claims stretched out the process interminably.

The federal court would then send the case back to the state court to review the inmate’s new claims, which would include the claims of ineffective counsel, and the state would review the case once again. The claims of ineffective counsel could cycle back and forth between the state and federal courts for years, delaying the execution date again and again.

The delays that had come into being since the passage of the laws had caused a great deal of debate in the Nevada Legislature, with some of the assemblymen supporting the removal of that extra layer of appeals.

“I think the appeals process should be limited to one at the state level and one at the federal level,” said Assemblyman Don Gustavson, R-Sparks, who added that he thought that his fellow legislators should be willing to consider changing the law. He said that he believed it “takes forever and is way too costly,” adding that sometimes the inmates died of old age before they exhausted all their appeals and were scheduled to be executed.

Legislators who were opposed to changing the appeal laws claimed that the extra precautions and the high cost of the appeals were ultimately worth it. Assemblywoman Sheila Leslie, D-Reno, said that she didn’t see much interest in the legislature to take the issue up again.

“You can’t put a price tag on a person’s life,” she said.

The ACLU also weighed in about its own disagreement with the proposal to eliminate the mandatory representation requirement. They stated there was no room for error when the courts were dealing with life-and-death issues.

“When the state makes the decision to put someone to death, never is there a more crucial time to ensure that their lawyers are zealously and effectively representing their defendants charged with a capital crime,” said Lee Rowland, staff lawyer for Nevada’s ACLU chapter.

“The decision to put someone to death can’t include a margin of error for incompetent counsel.”

Because most death row inmates were indigent, public defenders were being appointed to represent them, and they were often overworked with case-loads that were much too high, Rowland said. She said that while the system allowed for a thorough review of an attorney’s competence during the appeals process, there was a severe limitation on what defendants could do in order to prove their lawyer ineffective, citing as an example one case where a lawyer was not pronounced ineffective, even though he had slept through what was referred to as “noncritical” parts of a legal proceeding.

“We as a society need to ensure when we provide lawyers to poor defendants charged with death, that those lawyers do everything they can to ensure there are no factual or legal errors made in those cases,” she said.

On the other side of the debate, there was a great deal of criticism among those who felt that the long delays caused by seemingly endless appeals were unfair to the families of victims, to law enforcement, and to the entire justice system.

Wayne Teglia, a former Reno police officer who had investigated many death penalty cases during his career, said that the legislature was “being careful to the point of absurdity. You can’t get the death penalty carried out. How do you think the families feel?”

The only way that the state would see Biela executed, Teglia said, was if Biela decided to drop his appeals process and voluntarily choose execution. Washoe County DA Richard Gammick said that it benefited everyone when a death row inmate stopped his appeals. But ACLU attorney Lee Rowland pointed out that out of the twelve inmates executed in Nevada since 1976, eleven of them had voluntarily given up their appeals and had chosen to die. Rowland said that was disturbingly similar to state-sponsored suicide.

Richard Dieter, of the Death Penalty Information Center, said that a death sentence usually amounted to around twenty years of solitary confinement, with most inmates on death row eventually dying, but from natural causes rather than from execution. The question had been raised in the U.S. Supreme Court as to whether such long death row stays should be considered cruel and unusual punishment; and whether that, in turn, was in violation of inmates’ Eighth Amendment rights.

Dieter said that the court had not thus far accepted a death penalty challenge that was based on the length of time an inmate had spent on death row, but two of the Supreme Court justices had disagreed with the court’s refusals that had been made on that basis, claiming that suffering occurred when time spent waiting for execution was prolonged. Another justice said that it was “incongruous” to allow the inmates a roster of constitutional claims that extended their wait—then, at the same time, to complain about the delay in execution. But one of the first two justices said that the delays could not be blamed on the inmates, but on the states, for failing to comply with the U.S. Constitution’s requirements in the first place.

The average length of time inmates spend waiting on death row in the United States has substantially increased over the years. The national average waiting time in the 1970s and 1980s was around four years from sentencing to execution, increasing to around thirteen years by 2008. By the time Biela went to the Condemned Men’s Unit at Ely State Prison to join the other eighty inmates on Nevada’s death row, the average time there was a wait of seventeen years, and one prisoner had been there for over thirty years.

Before his retirement from office, one Nevada assemblyman said that because of the astronomical cost of the appeals process to the state, Nevada needed to take a thorough look at the system and decide whether convicting a murderer to death, instead of giving him a life sentence, was worth the extreme price tag.

Assemblyman Bernie Anderson, of Sparks, sponsored a bill prior to his retirement that would temporarily suspend the death penalty while the state studied its true cost. The bill had not yet passed when Biela was convicted, but Anderson said that capital cases and the appeals that followed them were costing taxpayers millions . . . per individual case.

“The death penalty absolutely costs more money [than life-in-prison sentences],” Anderson said. “In fact, the DA’s office, the public defender’s office, everyone agrees it’s much more costly than incarceration.”

Anderson said that those offices needed to help make the public aware of the real costs of death penalty prosecution and conviction, and whether that cost was beneficial to the state or if it would be better spent on education or other more constructive matters.

“We’re going to have tough economic times ahead of us in the next three or four years,” Anderson said, “and every dollar counts.”

Anderson said that since he was retiring before his bill was due to be considered, he did not know if anyone else would take up sponsorship of it and if it, or any version of it, would ever pass the legislature. He believed, however, that it did have some support. That support might have eventually come from some of his colleagues in the legislature. However, when it came to James Biela and his appeals process, the citizens of Reno had a very different set of opinions.