The Nevada Supreme Court has unanimously ordered a new penalty hearing for a man sentenced to die for a double murder.
Marlo Thomas was convicted of robbing the restaurant where he formerly worked in April 1996 and stabbing two employees there to death.
The Supreme Court has already rejected his primary appeal ruling there is overwhelming evidence Thomas committed the crimes. But the high court concluded his lawyer was ineffective because he failed to object to an instruction given jurors during the penalty hearing.
The instruction stated that the Pardons Board could change a sentence and give Thomas a chance at parole even if the jury sentenced him to life without possible parole.
The court said that is not true because the Legislature changed the law to prevent the Pardons Board from commuting a death sentence or term of life without possible parole.
"There is therefore a reasonable probability that jurors mistakenly believed that Thomas could eventually receive parole even if they returned sentences of life in prison without parole and that this belief contributed to their decision to render verdicts of death," the opinion states.
Therefore, the court ruled, Thomas must get another penalty hearing to determine his sentence.
The court also objected to two arguments used by the prosecution in the case including the statement "This is not a rehabilitation hearing. There is no program that we know of that rehabilitates killers."
The court said the statement was improper and not supported by the evidence.
They made the same comment about the prosecution's argument that Thomas "is deserving of the same sympathy and compassion and mercy that he extended" to the victims. "Don't let justice be robbed in the name of mercy."
The high court said Thomas' lawyer should have objected to that statement as well.
Contact Geoff Dornan at nevadaappeal@sbcglobal.net or 687-8750.
