New penalty hearing ordered in 1986 death case

The Nevada Supreme Court has affirmed a district court order for a new penalty hearing for Richard Haberstroh, who was convicted of murder in 1987.

He was originally sentenced to death for the 1986 rape, stabbing and strangling of a woman he kidnapped from a Las Vegas grocery store parking lot.

Haberstroh's first trial ended in a hung jury -- which voted 11-1 for conviction. His second trial produced a conviction and -- after he refused to let his lawyer present any mitigating factors in his penalty hearing -- a death sentence.

Several appeals and petitions in the case were rejected before Haberstroh's lawyers won an evidentiary hearing in 1999. Following a series of hearings which ended in June 2001, the district court threw out the death sentence, finding that the original "depravity of mind" instruction used to support the death sentence was unconstitutional.

The state, however, appealed that ruling.

Four of the seven justices agreed the prosecutor relied heavily on the "depravity" argument in asking for the death penalty. They concluded that may have significantly influence the jury's decision to impose the death penalty. They said the issue was further skewed by Haberstroh's refusal to allow his lawyer to present mitigating factors.

The majority opinion signed by justices Bob Rose, Deborah Agosti, Miriam Shearing and Bill Maupin upheld the district court decision and ordered a new penalty hearing for Haberstroh.

The minority, however, said there were four other aggravators supporting the death sentence. They concluded the lack of mitigating factors was Haberstroh's decision and that "his belated offer of such evidence is of no consequence to the decision before this court."

They said they would have reinstated the death sentence in the case and denied a new penalty hearing.

The case will return to district court for a new penalty hearing.

Federal public defenders Michael Pescetta and Elizabeth Brickfield got a sharp slap on the wrists and a warning from the court over their handling of Haberstroh's appeal.

The court criticized Pescetta and Brickfield for filing "extensive irrelevant material" in their briefs.

According to the court, they filed an appendix of 52 volumes totaling 11,384 pages with the Supreme Court.

"In their briefs to this court, however, they did not cite to even a single page in 22 of the volumes and, for most of the other volumes, they cited to only a few pages out of an entire volume."

The court admonished Pescetta and Brickfield and cautioned them that "we will consider sanctions for similar conduct in the future."

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