Thursday, Jan. 7, 2010 | 12:05 p.m.
CARSON CITY -- The Nevada Supreme Court has ordered a new penalty hearing for Las Vegas killer Herbert Wesley, sentenced to death for the fatal stabbing of his father in March 1992.
The court said a robbery “aggravator” used by the jury to impose the death sentence was invalid.
Isaac Wesley was stabbed 18 times in the head, neck, chest, abdomen and hand. His stepmother, Doella Wesley, was stabbed 36 times, of which 26 were in the chest and shoulder. For her death, the stepson, now 44 years old, was sentenced to life in prison without the possibility of parole.
The court, in the decision written by Justice James Hardesty, rejected the argument of the Clark County District Attorney’s Office that the use by the jury of the invalid robbery aggravator was a harmless error.
The court said it doesn’t know if the jury would have returned a death penalty if the invalid aggravator was not included. The robbery aggravator, which involved theft of a television set, was not included in the sentencing for the death of the stepmother.
The court rejected the plea of Wesley to just reduce his sentence to life in prison without possibility of parole.
The ruling reverses in part and affirms in part the decision of former District Judge Elizabeth Halverson.
The court turned down the arguments of Wesley that his trial attorney was ineffective; that African-Americans and other minorities were excluded in the jury selection process and that the medication he took during trial affected his mental capabilities.
Aggravating circumstances must outweigh mitigation to merit the death penalty.
In this case, the aggravators were a prior conviction of assault and robbery and the mutilation of the victims.
Wesley presented testimony from nine family members, all of whom were related to the victims by blood or marriage, urging the jury to show mercy because Wesley's execution would be yet another tragedy for the family to endure.
There was testimony from a mental health expert that Wesley had an IQ of 77, read at a fifth-grade level and had the math skills of a sixth-grader.
There are presently 82 men on death row at the state prison in Ely.
District Judge Steven Kosach of Reno on Tuesday set the execution of killer Robert L. McConnell for next month by lethal injection.
The last execution in Nevada was of Daryl Mack in 2006. There have been 74 known legal executions in Nevada since 1863.
McConnell pleaded guilty to the killing of Brian Pierce in April 2002.
Unless McConnell appeals to the federal courts, his execution date will be set by prison officials.