Challenge spurs uncertainty in race for commission seat . LVRJ 7/25/08

Reid pushes for polygamist crackdown. LVRJ 7/25/08

High court: District judges can live outside their areas. Nevada Appeal 7/25/08

Conviction upheld for Verdi woman's killer. LVRJ 7/25/08

Death sentence upheld. SFChronicle 7/25/08

Justice Advised CIA in '02 About Legal Waterboarding (re: 9th Circuit Judge Bybee). Washington Post 7/25/08

A number of issues were raised in Browning, all of which the Nevada Supreme Court found either to be without merit or to be harmless error.

Presentation of false evidence
Browning contended that the district court erred in precluding him from presenting evidence developed during post-conviction proceedings indicating that much of the evidence introduced at the original trial, and repeated during the second penalty hearing, was false or misleading. The Court does not directly address the issue of whether the State is allowed to present false or misleading evidence, but rather finds that Browning was not prejudiced by the introduction of the specific evidence at issue. The Court finds that "[t]o the extent Browning argues that the evidence outlined above suggested that he was not the individual who stabbed [the victim], relief is not warranted because he had already been found guilty and such evidence was not relevant to the sentencing decision." The Court addresses this issue as a matter of lingering doubt and does not address authority concerning role in the offense or relative culpability. The Court also finds that Browning's argument concerning the State's presentation of false and misleading evidence was without merit because it was not relevant to his case in mitigation. The Court also rejects Browning's argument that he should have been allowed to contest this evidence because it concerned two of the four aggravating circumstances. The Court does not directly address this issue but instead concludes that sufficient evidence was introduced to support a finding that the two aggravating circumstances applied to Browning.

Reconsideration of previous finding of harmlessness re: the guilt phase
Browning argued that the Court should reconsider its previous findings in habeas proceedings that two deficiencies in trial counsel's representation and a prosecutor's failure to divulge benefits to witnesses did not warrant reversal of the guilt phase. Although this evidence was used against Browning at the second penalty hearing, which established the materiality of the evidence as the State could not present its case without the evidence, the Court declines Browning's invitation to revisit this matter.

Jurisdiction of a senior judge to preside over a capital case
Browning argued that a senior judge lacked jurisdiction to preside over a capital case. The Court finds that nothing in SCR 250 precludes appointment of a senior judge.

Removal of a juror for cause
Browning contended that the district court judge erred in asking a juror whether he could consider the death penalty in a case where, as here, the defendant was convicted of first-degree murder by entering a jewelry store, stealing jewelry, and stabbing the owner to death. The juror stated that he could consider the death penalty ina case that involved "the worst of the worst," but not in a case such as Browning's. The Nevada Supreme Court finds that neither the district court's examination of the juror about the specific facts of this case nor his removal of the juror for cause was an abuse of discretion.

Irregularities concerning the mitigation verdict form
During the second penalty hearing, an issue developed concerning whether two verdict forms concerning mitigating circumstances had been provided to the jury for considerations during deliberations. The district court found that the verdict forms had been given to the jurors. The Nevada Supreme Court finds that the district court's factual findings should be given deference and that it would not have mattered if the forms had not been provided to the jury.

Instruction regarding the felony-murder aggravating circumstances
The jury found aggravating circumstances of burglary and robbery. Browning contended on appeal that the jury was erroneously instructed because they were not informed of the elements of NRS 200.033(4), and Enmund v. Florida and Tison v. Arizona, which require a finding that the person charged killed or attempted to kill the person murdered, or knew or had reason to know that life would be taken or lethal force used. The Court notes that there was no objection to the instructions at trial and finds that the omission of the elements does not constitute plain error and that Browning was not prejudiced.

Prosecutorial misconduct
The Court declines to consider instances of prosecutorial misconduct for which no objection was made at trial after finding that they do not constitute plain error. The Court finds no problem with the prosecutor's reference to Browning and his actions as "evil."

The Court finds that it was not misconduct for the prosecutor to blame the victim's murder on the criminal justice system and to suggest that Browning was trying to fool the system and by extension the jurors because Browning's counsel stated during opening statements that they would ask for a sentence allowing parole and the State could properly argue that allowing Browning the opportunity for parole was unreasonable in this case.

Next, to the extent that the prosecutor disparaged defense counsel and legitimate defense tactics, the Court finds that the comments did not prejudice Browning.

Denial of investigative funds
Browning asked for release of information by the State of death penalty data, or in the alternative, requested $25,000 for investigation of death penalty data. The Court finds no error based upon the denial of this motion because Browning failed to explain any prejudice to his defense resulting from the absence of this information.

Use of leg restraints during the penalty phase
The Court finds that the district court erred in ordering Browning to wear leg restrains based solely upon the fact that he had been convicted of first degree murder, but finds that Browning was not prejudiced.

Admission of Hearsay
The Court declines to reconsider its decision in Johnson, Thomas and Summers and finds that admission of hearsay evidence in a capital penalty hearing does not violated the Confrontation Clause under Crawford v. Washington.

Admission of evidence in violation of a district court order
In the district court proceedings, the trial judge ruled that the State could not introduce "other matter" evidence unless it was admitted at the first penalty hearing. The State argued that evidence not introduced at the first penalty hearing was admissible, but the district court found it to be inadmissible under Bennett v. District Court. The State did not follow the district court's order and instead introduced evidence that was not admitted during the first penalty hearing. Browning contended that it was error to allow the State to introduce evidence in violation of the court's order. The Nevada Supreme Court does not address this issue but instead finds that the evidence was admissible under Bennett.

Cumulative Error
The Court does not find cumulative error. It affirms Browning's death sentence.

Disclosure - I am counsel for Browning.

The Nevada Supreme Court finds that "by its plain meaning, the term 'related by blood or marriage' includes the relationship between sister-in-law and brother-in-law. The Court also finds that the rule of lenity does not apply because the statute is not ambiguous and because the purpose of the domestic violence enhancement is to comprehensively combate domestic violence and reduce recidivism.

In Hallmark, the Court, sitting en banc, concludes that a district court abused its discretion when it allowed a physician with an engineering background to testify as a biomechanical expert against a personal injury plaintiff because, among other reasons, the testimony did not assist the jury in understanding the evidence as the testimony was not based on a reliable methodology. The Court notes that it has not adopted the US Supreme Court's interpretation of NRS 50.275's federal counterpart, FRE 702, but Daubert v. Merrell Dow Pharmaceuticals and other federal court decisions provide persuasive authority in determining whether expert testimony should be admitted in Nevada courts.

"[B]efore a person may testify as an expert under NRS 50.275, the district court must first determine whether he or she is qualified in an area of scientific, technical, or other specialized knowledge. In determining whether a person is properly qualified, a district court should consider the following factors: (1) formal schooling and academic degrees, (2) licensure, (3) employment experience, and (4) practical experience and specialized training. . . . [T]hese factors are not exhaustive, may be accorded varying weights, and may not be equally applicable in every case."

"If a person is qualified to testify as an expert under NRS 50.275, the district court must then determine whether his or her expected testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. An expert's testimony will assist the trier of fact only when it is relevant and the product of reliable methodology. In determining whether an expert's opinion is based upon reliable methodology, a district court should consider whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization. If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a district court should also consider whether (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute. We again note that these factors are not exhaustive, may be accorded varying weights, and may not apply equally in every case."

In Hallmark, the Court concludes that a doctor was qualified as an expert under NRS 50.275, but finds that the district court abused its discretion when it allowed the expert to testify because his biomechanical testimony and report did not assist the jury in understanding the evidence or in determining a fact in issue. The offering part did not offer any evidence that biomechanics was within a recognized field of expertise, that the doctor's biomechancial opinion was capable of being tested or had been tested, and did not present any evidence that his theories had been published or subject to peer review. The party also did not offer any evidence showing that these types of opinions were generally accepted in the scientific community. Further, his opinion was highly speculative because he conceded he formed it without knowing certain details about the case.

The Court concludes that the new amendments to NRS 193.165, which were effective as of July 1, 2007, do not apply to offenders who committed their crimes prior to the effective date of the amendments but were sentenced after that date. The Court reaffirms the general rule that crimes are punishable in accord with the law in force at the time a defendant commits his crime unless the Legislature clearly expresses its intent to the contrary. The same rules concerning retroactive application of changes in criminal law apply equally to both primary offenses and sentence enhancements.

State v. Dist. Ct. (Pullin) - retroactivity of the deadly weapon enhancement statute amendments

City of Las Vegas v. Dist. Ct. (Meunier) - domestic violence/sister-in-law & brother-in-law

Hill v. State - potential juror bias in grand jury proceedings

Hallmark v. Eldridge - admission of expert testimony

Moldon v. County of Clark - interest on deposits in eminent domain actions

Vredenburg v. Sedgsick CMS - worker's compensation & suicide

Attorney General v. Montero - residency requirements for district court judicial candidates

Details on several of these opinions will be set forth in separate posts.

Nevada Supreme Court uses court facilities to push creation of court of appeals. Reno News and Review 7/24/08

Plea made for more judges to hear cases. LVRJ 7/24/08

Editorial: A healthy dose of sunshine. LVRJ 7/24/08

Jones takes stand in probe of Minxx club shooting in '07. LVSun 7/24/08

Economic Downturn: Nevada's fiscal woes among worst. LVRJ 7/24/08

Experts: Nevada not taking care of its kids. LVRJ 7/24/08

Reid presents bill aimed at polygamy. LVRJ 7/24/08

ACLU to urge court to OK vote on initiative petitions. LVRJ 7/24/08

Parents of dead toddler are indicted. LVRJ 7/24/08

No cloaks, no daggers, just the mayor. NYTimes 7/24/08

Rove denies involvement in prosecution of governor. NYTimes 7/24/08

Woman accused in myspace suicide case seeks to have all charges dismissed. Washington Post 7/24/08

LA attorney may face federal charges. LATimes 7/24/08

Nicholas Del Vecchio
Website - ?
Motto - ?
Current Job - Family court judge
Admitted in Nevada - ?

Cynthia Giuliani
Website - www.giulianiforjudge.com
Motto - Families First
Current Job - attorney in private practice
Admitted in Nevada - ?

Vincent Ochoa
Website - www.vincentochoa.com
Motto - ?
Current Job - attorney in private practice
Admitted in Nevada - 1979

How Reliable Is DNA in Identifying Suspects? is a must read article for those with cases involving DNA.

Bryan R. Schechmeister Death Penalty College
August 2-7, 2008
Santa Clara University
Santa Clara, CA

Thirteenth Annual National Federal Habeas Corpus Seminar
August 21-24, 2008
St. Louis, MO

Expert Witnesses in Capital Cases
By:Texas Criminal Defense Lawyers Project
Aug 22, 2008
Plano , TX

Life Over Death
By:Florida Public Defender Association
Sep 10 - Sep 13, 2008
Naples, FL

Making the Case for Life XI
By:National Association of Criminal Defense Lawyers
Sep 25 - Sep 27, 2008
Biloxi, MS

Annual Capital Seminar
By:Oregon Criminal Defense Lawyers Association
Oct 17 - Oct 18, 2008
Welches, OR

Capital Defense Mental Health Training
By: The National Consortium for Capital Defense Training
Oct 17- Oct 18, 2008
New Orleans, LA

Federal Death Penalty Strategy Session
October 31-November 1, 2008
Phoenix, Arizona

Capital Representation Seminar
By:Utah Association of Criminal Defense Lawyers
Nov 01, 2008
Salt Lake City, UT

Annual Death Penalty Seminar
By:Ohio Association of Criminal Defense Lawyers
Nov 19 - Nov 21, 2008
Worthington, OH

Death Penalty 2008
by: Maricopa County Public Defender
Dec. 04 - Dec. 05, 2008
Maricopa, AZ

Charge of tax break denied. LVRJ 7/23/08

Smith: A century old, the FBI changed our desert den of sin forever. LVRJ 7/23/08

Nevada Highway Patrol: Sergeant may face grand jury. LVRJ 7/23/08

Task force: polygamy crime bill proposed. LVRJ 7/23/08

Spring Creek mom won $25K in settlement. Elko Daily 7/22/08

Mukasey's Wary Start Dismays Ex-Backers. NYTimes 7/23/08

Polygamist is indicted in assault of a child. NYTimes 7/23/08

Two Sides at Guantanamo Trial Paint Starkly Different Pictures of the Defendant. NYTimes 7/23/08

U.S. Judge Upholds Secrecy of Rosenberg Testimony. NYTimes 7/23/08

Lisa Kent
Website - ?
Motto - ?
Current job - Family court judge
Admitted to practice in Nevada - 1991

Michele Mercer
Website - ?
Motto - ?
Current job - Attorney in private practice
Admitted to practice in Nevada - 1998

Kenneth Pollock
Website - www.pollock4judge.com
Motto - Your First Choice For Family Court Judge Department J
Current job - attorney in private practice
Admitted to practice in Nevada - 1998

Morrisa Schechtman
Website - www.schechtman4judge.net
Motto - Committed and Dedicated to Helping Families
Current job - Attorney in private practice and pro tem commissioner
Admitted to practice in Nevada - 1991

Houston was convicted of conspiracy to commit murder, three counts of attempted murder with use of a deadly weapon and three counts of discharging a firearm out of a motor vehicle. He contended that his Sixth Amendment rights were violated because he was represented by the Clark County Public Defender's Office and that same office represented the State's star witness, who was an alleged victim, in a prior related proceeding. The Ninth Circuit rejected the findings of Judge Mosley and the Nevada Supreme Court that Houston's right to conflict-free counsel was not violated. The Court noted that Judge Mosley obtained a waiver of the conflict from the alleged victim but did not obtain a waiver from Houston, despite the fact that trial counsel explained that the two cases were related, that counsel's heart was going to be with the alleged victim, he believed that the alleged victim had not committed the crimes in the earlier case, .and he was concerned that the alleged victim would admit to facts on cross-examination which would expose him to criminal liability or impact his parole status.

"In this case, after Chadwick waived his attorney-client privilege, the trial judge concluded that no conflict existed,
without ever inquiring into the impact the prior representation may have had on Houston or on [trial counsel's] performance. Indeed, the judge saw "no conflict here whatsoever" and failed to see "how Mr. Houston has a right to waive anything." Because any conflict that existed was Houston's either to waive or to assert, the trial judge's exclusive focus on Chadwick was misplaced, rendering the conflict inquiry inadequate. See Lockhart v. Terhune, 250 F.3d 1223, 1232-1233 (9th Cir. 2001). Similarly, the Nevada Supreme Court failed to reach the issue of whether Jorgenson acted adversely to his current client, or whether his performance prejudiced Houston."

The Circuit remanded the case for an evidentiary hearing on the issue of whether trial counsel acted adversly to Houston or whether his performance prejudiced Houston.

Congratulations to Anne Traum, former Assistant Federal Public Defender and now faculty member at the Boyd School of Law.