Lawyer says errors warrant new trial

Attorneys told the Nevada Supreme Court on Monday that trial errors warrant a new trial, new sentencing hearing or, at minimum, commutation of James Biela's death sentence to life in prison.

Biela was sentenced to die for raping and murdering Brianna Dennison, who was kidnapped in January 2008 from a friend's couch after a party near the University of Nevada, Reno.

In the same trial, Biela was also convicted of raping two other women.

The Dennison case created a storm of publicity, including national media attention. A wide-ranging search using every tool available failed to find her until Feb.15, 2008, when an engineering firm employee found her body in a south Reno field. In November 2008, Biela was found based on a tip from a former girlfriend.

After that, two other women came forward and said Biela had raped them.

Attorney John Petty said the jury was given an instruction that made it almost impossible not to find that aggravating factors outweighed mitigating factors in deciding whether to impose the death sentence. He said the trial judge included two jury instructions that said mitigating factors must outweigh aggravating circumstances "beyond a reasonable doubt."

Petty said the decision to impose the death sentence was a moral judgment.

"The weighing process is not a fact-finding process," Petty said. "This is plain error."

He admitted under questioning from Justice Michael Douglas that the defense counsel hadn't objected to those instructions, but he argued that that requirement set a bar far too high for jurors to reject the aggravators that justify a death sentence. Petty urged the court to send the case back because "this is plain error."

He agreed when Justice Kris Pickering asked whether those instructions made the case "irretrievable."

Washoe Deputy District Attorney Terry McCarthy, however, argued that jurors were fully aware from the judge's instructions that "the law never compels the death penalty."

He also disputed the argument by Petty and co-counsel Cheryl Bond that the two other rape cases should have been tried separately from the Dennison murder.

"When you bundle them all together, there's a bleedover effect that would get the jury to render a verdict," she said.

Bond asked the court to throw out the convictions and order separate trials for Biela.

The court took the case under submission.