Wednesday, Sept. 18, 2002 | 10:55 a.m.
SUN STAFF AND WIRE REPORTS
SAN FRANCISCO -- A federal appeals court has overturned a Las Vegas murderer's death sentence, ruling the man who stabbed a prostitute 45 times in 1986 did not get a fair trial.
The 9th U.S. Circuit Court of Appeals on Tuesday said unconstitutional instructions to the jury may have prejudiced jurors to vote for a death sentence after they had convicted John Valerio.
It is the third Nevada death sentence overturned for the same reason, and 16 of the 85 condemned inmates on Nevada's death row assert similar claims on appeal, said Michael Prescetta, a federal public defender in Las Vegas.
"The result seems positive for us," he said. "When a jury is deciding when to make someone eligible for the death penalty, they have to have objective standards."
Valerio, who will remain in prison pending the outcome of further litigation, was convicted of murdering Karen Blackwell, also of Las Vegas. Her body, with 45 stab wounds, was found in the trunk of a car wrapped in bedding from Valerio's apartment.
Police said Valerio's bedroom was spattered with blood, and Blackwell's keys and address book were found in his jacket pocket. His name was on a list of customers she kept in her address book.
Valerio denied guilt.
A Clark County jury convicted him in 1988 and found the murder involved "torture, depravity of mind or mutilation."
But the 9th Circuit ruled that "depravity of mind" was too vague for jurors to understand.
The decision reverses U.S. District Judge Howard D. McKibben and the Nevada Supreme Court, which upheld the death verdict on grounds the victim suffered torture or serious physical abuse.
"Obviously, we're very disappointed and we're considering where we go from here," said Robert Wieland, Nevada senior deputy attorney general.
The Nevada Legislature eliminated the "depravity of mind" factor in 1995, 15 years after the U.S. Supreme Court ruled that the factor was too vague and prejudicial to capital defendants.
The decision also reverses a 2000 decision from the 9th Circuit, which upheld Valerio's execution, 3-0, without ruling on the merits of his appeal. The circuit reheard the case with 11 judges, and set aside the death sentence Tuesday on a 7-4 vote.
The court, in the majority decision written by Judge William Fletcher, told McKibben to grant a writ of habeas corpus overturning the death sentence "unless the state in a reasonable time either grants a new penalty hearing or vacates the death penalty and imposes a lesser sentence."
The court also told McKibben to grant a new hearing to Valerio on claims that he did not get a fair trial in determining his guilt. Valerio asserted the prosecution withheld exculpatory evidence and that his trial attorney was ineffective.
Judge Pamela Rymer, in the dissenting opinion, wrote the majority "puts the cart before the horse" in overturning the death penalty, then sending the case back to determine if Valerio's guilty verdict should be reversed. She said she would uphold McKibben on denial of the petition to void the death penalty.
"Here any rational fact-finder could find that stabbing the victim 45 times in clusters of eight on the head and neck and breasts and elsewhere was murder with torture or serious physicial abuse."
Sun reporter Cy Ryan
and the Associated Press contributed to this report.