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Nevada Supreme Court hears oral argument in Flanagan case

On Tuesday, the Nevada Supreme Court heard oral argument in the capital habeas case of Flanagan v. State. Audio of the oral argument is available here.

Robert Newell from Portland appeared on behalf of Flanagan. He argued that he was entitled to an evidentiary hearing based upon claims raised in the petition and argued that trial counsel's repesentation of Flanagan was ineffective. Issues included the fact that Judge Mosley ordered that defense counsel place their objections during trial on the record to the court reporter during breaks and that the objections not be made in the presence of the court or jurors. Other issues concern failure to disclose exculpatory evidence, failure to investigate, and jury instruction issues. This case also presents a McConnell issue because the State relied upon a felony murder theory of liability and also obtained two felony murder aggravating circumstances. The Court did not ask any questions during the first argument.

Steve Owens appeared on behalf of the State of Nevada. He contended that the petition was procedurally barred because the guilt phase of the trial was affirmed over 20 years ago, even though the case was remanded for two penalty hearings after the guilt phase was affirmed. The State argues that post-conviction proceedings should be bifurcated for guilt phase and penalty phase proceedings. [btw - I have briefed this issue on behalf of Flanagan's co-defendant and the State is wrong, wrong, wrong on this issue as there is not now nor has there ever been any Nevada authority supporting such a scheme and the federal authorities also do not support this assertion]. The State agreed that the burglary and robbery aggravators should be stricken under McConnell, but argues that death is still appropriate as there are two other aggravators. As he did in Hernandez, Mr. Owens argued that the felony murder aggravators did not matter because the same evidence would have been presented and that the "label" assigned to the aggravator did not matter. He fails to address the fact that the "label" is critical to the weighing equation under Nevada's death penalty scheme. Mr. Owens also expressed his dissatisfaction with the Court's decision in Sharma concerning aiding and abetting liability. In response to a supplemental brief addressing the 9th Circuit's decision in Polk, the State asks the Court to overrule Byford and find that the elements of premeditated, willful and deliberate are a single element of first degree murder rather than three distinct elements. He claimed that the State faces the possibility of a new trial in every murder case that went to trial prior to 2000 based upon the Polk decision. He also attempted to distinguish Polk on various grounds. The audio was a little quiet, but I believe it was Justice Cherry who asked two questions of Mr. Owens concerning the procedural default issue and a question concerning the claim of actual innocence. No other questions were asked.

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