By Scott Sonner
RENO — A convicted murderer who has been on death row in Nevada for 34 years returned to court Monday to try to get his execution sentence reduced to life in prison after a federal appeals court ruled his rights were violated during the penalty phase of his original trial.
The 9th U.S. Circuit Court of Appeals upheld 67-year-old Tracy Petrocelli’s murder conviction two years ago in the 1982 killing of a Reno car salesman, months after Petrocelli had killed his girlfriend in Seattle.
But the San Francisco-based court ordered a new sentencing hearing partly because it concluded Petrocelli’s attorney should have been present and he should have been read his Miranda rights when he was interviewed in jail by a psychiatrist who later testified for the prosecution.
Petrocelli has filed multiple appeals since he was sent to death row in 1985. Nevada hasn’t executed anyone since 2006.
Petrocelli testified during his original trial that he believed the psychiatrist, Dr. Lynn Gerow, had come to see him in response to his request for counseling and that his comments were confidential. Gerow testified that based on his evaluation, Petrocelli had a “psychopathic” personality, for which “there is no cure.”
In ordering a new sentencing hearing, the 9th Circuit said that Gerow was acting at the request of the prosecutor, failed to provide Miranda warnings, did not seek or obtain permission from Petrocelli’s appointed counsel to evaluate him, and testified that Petrocelli “was dangerous and incurable.”
The appellate court concluded “the violation had a substantial and injurious effect on the jury’s decision to impose the death sentence.”
Washoe County District Judge Egan Walker said Monday the jury resentencing Petrocelli will choose from death, life in prison without parole or life in prison with parole.
A former Reno detective who says he’s biased in favor of the death penalty was among 19 prospective jurors eliminated from the pool on Monday, the first-day of jury selection for the 12-member panel and three alternates that will hear testimony expected to last three weeks.
The retired police detective told the judge he isn’t sure whether he testified at the original trial but knows the details of the case — the robbery and murder of the Reno car salesman, James Wilson.
“I’d love to serve in a death penalty case, but I don’t think the defense would want me,” the ex-detective said.
Walker also excused a woman Monday who said she was a family friend of the police officer who “picked up the defendant” after he was arrested in Las Vegas in 1982 for the fatal shooting of Wilson during a test drive north of Reno near Pyramid Lake in March 1982.
Prosecutors said in court filings that witnesses at the resentencing will include Wilson’s son, Eddie, who said he saw his father leave the car lot with Petrocelli. Eddie Wilson says his father distrusted banks and kept between $2,000 and $10,000 in cash on him.
Petrocelli said the shooting was an accident. He said he was driving a Volkswagen pickup with Wilson when the two argued about the sale price and Wilson twice tried to grab the steering wheel. Petrocelli said he then pulled out a gun and as they struggled, the gun went off two or three times. He said he didn’t know what to do so he buried Wilson’s body beneath rocks near the lake.
Petrocelli also was convicted of kidnapping and fatally shooting girlfriend Melanie Barker in Seattle in late 1981 after he escaped from prison in Washington state, and in 2008 he was convicted of murder in the 1981 shooting of 30-year-old Dennis Gibson in San Bernardino County, California. Gibson had been on a surfing trip and heading for Baja California when his body was found on a hiking trail near Calico Ghost Town.
Petrocelli’s case in Nevada produced a precedent-setting standard adopted by the state Supreme Court regarding the admissibility of evidence of “past bad acts” when a defendant faces charges for a new crime, but it has no direct bearing on the resentencing. Judges frequently order a so-called “Petrocelli hearing” during the pre-trial phase of discovery to determine whether a jury will be allowed to hear such evidence under special circumstances.