The problem begins two years ago, in McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), reh'g denied, 121 Nev. 25, 107 P.3d 1287 (2005). A defendant convicted of felony murder and sentenced to death made the often-made argument that the circumstance of killing during a felony could not be used both for guilt of murder through the felony-murder rule and as an aggravating circumstance making the defendant eligible for the death penalty. This argument had been accepted in Tennessee but rejected in most states where it arises. The prosecution ignored the argument, probably because there was Nevada Supreme Court precedent on point to the contrary, Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). However, the court reconsidered Petrocelli based on the intervening, but then 16 years old, U.S. Supreme Court decision of Lowenfield v. Phelps, 484 U.S. 231 (1988). Judge Becker believed that such a major change should not be made without oral argument and that the court should invite amicus briefing, but the majority charged ahead.

   The court upheld the death sentence despite the newly discovered "error," however. There were two other aggravating circumstances.  The court didn't say whether it was "reweighing" the aggravating versus mitigating itself or engaging in harmless error analysis. These were the two ways that a death sentence could be salvaged despite an invalid aggravator in a so-called "weighing state" at the time.

   The court later denied rehearing, after considering a petition by the Washoe County DA and an amicus brief by the Clark County DA. Apparently no certiorari petition was filed. The case holds that this dual use violates both the federal and state constitutions, but no separate analysis indicates that the state constitution is any different in this regard. In these circumstances, U.S. Supreme Court jurisdiction is borderline, but it is possible that the high court would review it. However, the state was in the odd position of having won the case despite a dubious and damaging ruling against it. With this additional wrinkle, it is extremely unlikely the U.S. Supreme Court would have taken the case, as they have said many times they review judgments, not opinions.

   Last Thursday, the Nevada Supreme Court decided in Bejarano v. State that McConnell was a substantive decision, not a procedural one, and so it applies retroactively to all cases, regardless of their stage of review. As in McConnell, however, the court upheld the death sentence. This time the court is explicit that it is engaged in "reweighing," but its "beyond a reasonable doubt" standard for reweighing amounts to the same thing as Chapman harmless error analysis. Calling it reweighing could make a difference when the case reaches federal habeas, however, as a new weighing is arguably a finding of fact rather than law. The same day, in Rippo v. State, a fractured court upheld the death sentence by holding McConnell "error" to be harmless beyond a reasonable doubt, with the lead opinion giving a mangled interpretation of Brown v. Sanders along the way.

   Once again, the state is in the awkward position of having won the cases but receiving a cramped and probably erroneous interpretation of U.S. Supreme Court precedent that may prove decisive in a future case. If either defendant files a certiorari petition this time, the state would be well advised to cross-petition on the interpretation of Lowenfield and Sanders.