Attorney General seeks rehearing in decision ordering retrial of 20-year-old murder case

The Attorney General’s Office has filed motions seeking a rehearing of the order tossing the conviction in a 20-year-old Carson City murder case.

Peter Quinn Elvik was just 14 when he was convicted of murdering William Gibson at the Carson City gun range in August 1995. He was convicted by a jury and sentenced to life in prison. That conviction was upheld by the Nevada Supreme Court but federal District Judge Gloria Navarro ruled the trial court was wrong in refusing to instruct jurors that defendants aged 14 and younger are presumed not to understand that their actions are wrong. She said without that instruction, it was much easier to convict Elvik and, therefore, a new trial must be ordered.

A 9th Circuit panel agreed with her finding that jurors should have been instructed to find, “by clear proof that Elvik knew that what he was doing was wrong when he committed the crime.”

The Nevada AG’s office asked the appellate court for a rehearing in May and Elvik’s public defender responded. But the case got a new twist in June after the U.S. Supreme Court changed the standard for reviewing state court errors of this nature.

The Supreme Court ruling said instead of the old standard in place when Elvik was tried, “the habeas petitioner must demonstrate the state court’s decision on the merits was objectively unreasonable.”

The new high court ruling, Solicitor General Lawrence VanDyke wrote, means that before a petitioner is entitled to relief, he has to show that a fair juror “could not reach the determination that the alleged error was harmless.”

“Elvik has not and cannot make that showing, as the pending petition for reconsideration demonstrates,” VanDyke wrote.

The AG’s office argues in its petition for rehearing that the trial record has more than enough evidence to show that Elvik was fully aware what he did was wrong.

“The record overwhelmingly established Peter Elvik possessed the capacity to understand the wrongful nature of his conduct when he killed and robbed Mr. Gibson and the jury’s verdict demonstrates the jury found beyond a reasonable doubt that the state overcame the presumption of innocence,” VanDyke wrote.

But Elvik’s lawyer Public Devender Lori Teicher said that’s not the issue. The question, she argued, is what impact not providing that instruction had upon the jury’s decision.

She said that’s not the same as the AG’s argument that simply because the jury found Elvik guilty, there was no error. Teicher said not giving the instruction about Elvik’s age impermissibly shifted the burden of proof in the case from the prosecution to the defense.

Because of that, she said there is no way to conclude that the error was harmless and the ruling vacating Elvik’s conviction must stand.

Elvik, now 34, was this month paroled from the first of his sentences, murder. He is now serving the life with possible parole for use of a deadly weapon in the murder.