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Instructions matter: Polk gets second degree verdict

Background: For many, many years criminal defense attorneys in Nevada argued that standard jury instructions on first degree murder were unconstitutional, invalid and otherwise bad as they muddled the distinction between first and second degree murder and did not give adequate attention to the mens rea elements of premeditation, deliberation and willfulness. For many, many years the Nevada Supreme Court disagreed and approved of the bad instructions. Then in 2000, in Byford v. State, the Court agreed that the standard instructions were bad and ordered that new instructions be given. Shortly thereafter, in Garner v. State, the Court held that Byford was not based upon constitutional error, refused to give Byford retroactive application and also refused to apply the rule to cases pending on direct appeal at the time Byford was issued. One of those cases was Polk v. State. Polk challenged the Nevada Supreme Court's ruling in federal habeas corpus proceedings and the Ninth Circuit ruled that Polk was entitled to relief as the Byford instructions were in fact constitutionally based. Throughout all of these proceedings the State argued that the failure to give the Byford instructions was not prejudicial to Polk, that any error was harmless, and that he would have been convicted of first degree murder under any instructions. The Ninth Circuit disagreed and found that the erroneous instructions warranted a new trial. More details on Polk are available in this prior post. The opinion is available here.

Today's verdict: Polk's retrial began about two weeks ago before Judge Gonzales. The jury was instructed under the Byford instructions on first degree murder. Despite the high quality representation by experienced prosecutors, the jury returned a verdict of guilty on the lesser charge of second-degree murder.

The lessons:
1. Instructions matter. They matter a lot.
2. Issues should be raises, and raised again, and raised again even if the Nevada Supreme Court rejects them. Justices change. Viewpoints change. And even if they don't, the federal courts might step in to protect constitutional rights -- but they can do so only if an issue is raised in state court and only if it is raised as a constitutional issue.

Congratulations to Alzora Jackson and David Schieck. This is an especially great victory for David as he was also Byford's counsel. And congratulations again to Lori Teicher who represented Polk in federal court and got the ruling from the Ninth Circuit that led to today's victory.

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