High court: Give jurors more leeway

The Nevada Supreme Court has decided juries should have more leeway in deciding when to convict a defendant of a primary or a lesser-but-similar charge.

The ruling did no good for Frederick Green, who raised the issue on appeal. The justices upheld his conviction, saying there was overwhelming evidence Green was guilty of aggravated stalking, including repeatedly threatening his ex-wife's life.

He was also convicted of sexually assaulting her and is serving two consecutive life sentences.

Green appealed his conviction for aggravated stalking. He protested that the district court instruction to jurors, which said they must unanimously find him innocent of aggravated stalking before they could consider whether he should instead be convicted of the lesser charge of misdemeanor stalking. His lawyer argued the instruction pushed the jury toward convicting him, even if some of them disagreed.

The high court panel of Bob Rose, Myron Leavitt and Bill Maupin agreed the instruction should be changed to allow jurors to "consider a lesser-included offense if they have reasonably tried but failed to reach a verdict on the primary charge."

That is called the "unable to agree" instruction and is used in other states, including Arizona, Hawaii and Oregon.

"If members of a jury believe that the defendant is guilty of some offense, an inability to unanimously agree to convict or acquit manifestly increases the likelihood that the jury will compromise by convicting the defendant of the primary or charged offense rather than risk a mistrial and free a guilty defendant by returning no verdict at all," the opinion states.

They reasoned the new rule would reduce the risk of compromise verdicts by allowing jurors to "better gauge the fit between the evidence adduced at trial and the offenses being considered."

They ordered all Nevada district courts to adopt the instruction in cases where jurors have a choice between a primary charge and a lesser-but-included offense.