In a 4-3 split decision, the Nevada Supreme Court on Thursday overturned the conviction of Jason Duval McCarty in the murder of two Las Vegas women nine years ago.
McCarty was convicted of kidnapping and murdering Charlotte Combado and Victoria McGee and sentenced to death. He initially appealed on grounds the trial judge admitted statements he made to investigators without having his attorney present.
But the high court rejected that claim, instead focusing on the trial judge’s decision to allow the state to remove a black woman from the jury pool with a peremptory challenge.
Prosecutors told the court “with all due respect, it has nothing to do with the race, but the State of Nevada’s not going to leave somebody who works at a strip club on their panel.”
McCarty’s counsel argued the state used her job as “pretext for purposeful discrimination.” They argued the juror obtained the strip club work card three years earlier and had actually been a full-time college student for the past year.
His legal team argued she had a card to serve coccktails at a strip club three years earlier and was not a full-time student and that it was unlikely she still worked at the club. The judge cut off the argument, stating, “it sounds like your argument here is for the Supreme Court. I’ve made my decision.”
The majority led by Justice Michael Cherry constitutes “clear error” given McCarty’s counsel objected to the challenge.
The opinion points out on appeal the prosecution didn’t even mention the strip club, focusing instead on the fact her brother had been incarcerated 13 years earlier.
“We conclude that the district court clearly erred,” the majority opinion states.
The opinion was signed by Justices Cherry, Ron Parraguirre and Nancy Saitta.
Justice Michael Douglas concurred with that decision, giving the reversal its majority. But he wrote separately expressing concern over how the district court handled the jury challenge.
“Here the district court articulated no factual or credibility findings regarding the state’s proffered race-neutral reasons for striking (the juror),” he wrote.
On the other side of the argument, Douglas wrote the district court didn’t satisfy its obligation to determine if McCarty’s lawyers met their burden of showing discrimination either.
“Consequently, the district court has left us in the dark,” he wrote.
He said that’s particularly troubling in capital cases where the death penalty is available.
But Justices Jim Hardesty, Kris Pickering and Mark Gibbons all dissented, saying they can’t reconcile the decision with the law. The dissent authored by Pickering says the defendant must “make a prima facie sowing that a peremptory challenge has been exercised on the basis of race,” and the judge must determine whether there’s discrimination.
The dissent states they shouldn’t reverse the district court unless it’s findings are clearly erroneous.
“The majority acknowledges these rules but then does not follow them,” she wrote.
The dissent says not wanting a woman who had worked at a strip club on the jury was an acceptable, race-neutral reason to challenge her.
McCarty’s case was sent back to the Clark County District Court for a new trial.