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The Nevada Supreme Court Monday upheld the double-murder conviction of John Edward Butler.
But five of six justices voted to order a new sentencing hearing for Butler, after agreeing with the defense there were numerous errors by the court that could have helped convince jurors to mandate a death sentence.
The seventh member of the high court - Justice Michael Douglas - was not part of the appeal case because he handled it as the trial judge.
Butler was convicted of killing Linn Newborn and Daniel Shersty the night of July 3, 1998, in Las Vegas, shooting them with a shotgun and small pistol. The killing was characterized as a racially motivated, gang killing. Newborn was black, and both victims were members of an anti-racist skinhead gang. Butler was a member of a racist skinhead gang.
Justices Miriam Shearing, Bob Rose and Nancy Becker agreed in the majority opinion that the prosecution made references to things happening that weren't actually in evidence, and made disparaging remarks toward defense counsel, including suggesting they were trying to deceive jurors. The prosecution also characterized a defense witness as "that high-falootin' expert" and described his testimony as "an infomercial" - both of which the court said was improper.
"It was also improper for the state to twice remark about how much money the defense experts were being paid for their testimony," the court said, adding that the prosecutor even suggested to jurors Butler was wasting taxpayers' dollars by calling his expert witnesses.
During the penalty phase, the justices said the judge was wrong to deny Butler's request that both his counsels argue for him, saying the court gave a bad instruction to jurors and allowed several inflammatory and disparaging remarks by the prosecution.
But the court said there is a strong likelihood Butler was prejudiced in his penalty hearing and, because of cumulative errors by the court and violations by the prosecution, denied a fair sentencing.
The three justices were joined by Deborah Agosti and Bill Maupin in supporting the call for a new sentencing in the case.
The only dissenting vote was from Justice Mark Gibbons, who said he would uphold the death sentence for Butler.