The 9th Circuit Court has rejected the Nevada Attorney General Office’s final attempt to reinstate the murder conviction of Peter Elvik.
“The petition for rehearing en banc is denied. No further petitions for rehearingen banc may be filed in response to the amended disposition,” the federal court ruled.
That means it’s now up to Carson City District Attorney Jason Woodbury to decide whether it’s even possible to put together a case and retry Elvik in the 21-year-old murder of William Gibson at the Carson City gun range in August 1995.
The issue is then-District Judge Mike Griffin’s decision not to instruct jurors defendants aged 8-14 are legally presumed not to understand their actions are wrong. Elvik was convicted and ordered to serve life with possible parole for the murder and the use of a deadly weapon and two 20 year terms for robbery. The conviction was upheld by the Nevada Supreme Court.
But a panel headed by U.S. District Judge Gloria Navarro ruled in 2014 the Nevada courts used the wrong standard in reaching that conclusion. She wrote failure to give that instruction to the trial jury made it much easier to convict the 14-year-old. That three-judge panel concluded the error was far from harmless because, without that instruction, the prosecution didn’t have to prove Elvik knew what he did was wrong.
The Attorney General took the case back to the 9th Circuit for a rehearing but was rebuffed. Solicitor General Lawrence VanDyke petitioned the U.S. Supreme Court to reinstate the conviction and sentence. The high court ordered another hearing by the appellate court, which again rule the conviction invalid.
The final petition filed last summer asked the case be reviewed by the entire 9th Circuit Court instead of just a three-judge panel.
That petition was rejected this past week because, “no judge has requested a vote on whether to rehear the matter en banc.”
That closes the final door in the case, leaving it to Woodbury to decide whether there are enough remaining witnesses and evidence to demand a new trial.
Elvik has since been released on parole.