Nevada’s Attorney General has asked the 9th Circuit Court of Appeals to reinstate the 20-year-old murder conviction of Peter Quinn Elvik arguing there is strong evidence he knew what he did was wrong even though only 14 at the time.
He was convicted of shooting William Gibson, 63, at the Carson City gun range in August 1995. The Nevada Supreme Court upheld that conviction saying the trial judge’s failure to instruct jurors the prosecution must prove Elvik understood what he did was wrong was harmless error.
Defendants aged 8-14 are presumed legally not to understand their actions are wrong.
A three-member panel headed by District Judge Gloria Navarro threw out the conviction saying not giving that instruction prejudiced the trial, making it much easier for the jury to convict Elvik.
The order for a new trial, however, wasn’t unanimous. Judge John Kronstadt voted to uphold the conviction saying he believes the evidence showed Elvik knew right from wrong.
Nevada Attorney General Adam Laxalt appealed that order to the U.S. Supreme Court, which, earlier this year, sent the case back to the 9th Circuit for a rehearing in light of new rulings involving juveniles and error.
“The trial evidence overwhelmingly proved that Elvik did understand the wrongfulness of his actions,” argued Assistant Solicitor General Jeffrey Conner.
He said Elvik’s counsel “has not made a showing of actual prejudice on the record from his case.”
“Where the court is convinced that the error had little if any likelihood of having changed the result of the trial, the error may be deemed harmless,” according to the brief filed Friday. “Mere disagreement between this court (the 9th Circuit) and the Nevada Supreme Court on how to resolve the issue of harmless error is not a basis for habeas relief.”
But Assistant Federal Public Defender Lori Teicher said in her supplemental brief that the burden is on the prosecution to show that Elvik understood his actions.
“Here, the instruction was never given to the jury, thereby relieving the state of its burden of proving all the elements of the offense,” she argued. “Failure to give the instruction in Elvik’s trial was such that it so infected the proceedings as to render it fundamentally unfair.”
She said the Nevada Supreme Court failed to conduct the proper analysis of whether the error was harmless or not, contrary to “clearly established federal law.”
“Children between the ages of 8 and 14 years cannot be liable to punishment in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness,” she concluded.
Elvik, now 35, has been paroled from the murder count and is now serving life with possible parole for the deadly weapon enhancement.
If the order for a new trial stands, it will be up to Carson City District Attorney Jason Woodbury to decide whether there is sufficient evidence left to order a new trial.