A three-judge panel of the 9th Circuit Court of Appeals has overturned the death sentence ordered for Tracy Petrocelli 35 years ago.
Petrocelli was convicted of the 1982 murder and robbery of James Wilson, a used car salesman, in Reno.
The three-judge panel overturned the death sentence because of the testimony of psychiatrist Lynn Gerow during the penalty phase of the trial. The opinion states that testimony was improperly admitted and “had a substantial and injurious effect on the jury’s decision to impose the death sentence.”
Wilson went on a test drive with Petrocelli in March 1982. At some point, Wilson was shot in the neck, chest and back of the head, his body buried under some rocks about 35 miles north of Reno.
The jury rejected Petrocelli’s contention the shooting was accidental and happened during a heated argument over the price of the truck.
Dr. Gerow testified during the penalty phase of the trial Petrocelli was psychopathic, callous and selfish. He told jurors such people have a propensity for further violence and the condition isn’t curable.
He interviewed Petrocelli without the permission of the defendant’s lawyer and while Petrocelli was under the impression Gerow was there to counsel him, not to decide whether he was competent to stand trial.
The opinion concludes the admission of Gerow’s testimony during the penalty phase of the trial was a flagrant violation of his constitutional rights.
The 9th Circuit panel also pointed to a jury instruction given by the court saying even if jurors sentenced Petrocelli to life without possible parole, the Pardons Board could release him.
According to the opinion by Judge William Fletcher, the impact of Gerow’s testimony was “magnified” by that erroneous jury instruction and further magnified by prosecutor Bruce Laxalt’s closing arguments emphasizing Gerow’s testimony Petrocelli was incurable and he would “forever remain a cool, unfeeling, callous individual,” a psychopath who would continue to victimize people.
He asked the jury to “return a verdict of death for Mr. Tracy Petrocelli, a cold-blooded killer who will always remain so.”
Petrocelli, now 65, remains at Ely State Prison, Nevada’s maximum-security institution. He was one of the longest serving inmates facing a death sentence.