Nevada Attorney General Adam Laxalt is making one more attempt to reinstate the murder conviction of Peter Elvik.
The petition seeks an en banc hearing on the conviction, which has twice been overturned by a three-judge panel of the 9th Circuit Court of Appeals. If granted, that would have the entire 9th Circuit decide whether the conviction should stand or be thrown out.
The issue is the failure of the trial court in Carson City 20 years ago to give jurors the instruction defendants under the age of 15 are presumed not to know the wrongfulness of their actions unless there’s substantial evidence to the contrary.
Elvik was convicted of shooting and killing William Gibson, 65, at the Carson City gun range in August 1995.
Elvik’s lawyers appealed the conviction to the Nevada Supreme Court, arguing that instruction must be given in the case and, without it, the conviction is void because there’s no evidence of Elvik’s state of mind at the time of the crime.
The three judge panel headed by Judge Gloria Navarro agreed with Elvik’s lawyers and overturned the conviction saying the lack of that instruction made it much easier for a jury to convict the then-14-year-old.
But the decision wasn’t unanimous. Judge John Kronstadt dissented saying he believed there was ample evidence in the transcripts of the trial to show Elvik knew right from wrong.
The AG appealed to the Supreme Court which sent the case back to the 9th Circuit for a thorough review. The same panel, however, made the same decision the second time around.
In the petition for a review by the full 9th Circuit Court, the AG’s office argued this week “the evidence at trial overwhelmingly established that petitioner Peter Elvik was a highly sophisticated and intelligent 14-year-old with the capacity to commit a criminal offense.”
If the petition is rejected, it falls to Carson City DA Jason Woodbury to decide whether, more than 20 years later, he can reconstruct the case and try Elvik again on the murder charge.
Woodbury told The Associated Press he hasn’t decided whether to seek a retrial but his office is proceeding as if it would. He cited both practical and principled reasons to do so, but said a retrial would cost an estimated $100,000. He said it’s already proving difficult to round up witnesses who testified 20 years ago.
And that’s “only half the battle,” Woodbury said in an email. “Once we find them, we need to evaluate whether they have a sufficiently reliable memory to provide credible testimony in a retrial.”
Elvik, in the meantime, was released on parole earlier this summer.