Michael Mulder Randolph Moore Dale Flanagan

CARSON CITY -- The Nevada Supreme Court on Thursday said in two separate capital punishment cases that a previous ruling limiting the criteria that prosecutors can use to seek the death penalty applies retroactively to dozens of other death penalty cases.

As a result, a Clark County prosecutor said, the decision will require new reviews in as many as 40 death penalty cases from Southern Nevada and several others prosecuted elsewhere in the state. Some death sentences might be overturned as a result of the Thursday opinions.

In the specific cases before the court involving Las Vegas death row inmate Michael Rippo and Reno death row inmate John Bejarano, the sentences of death were upheld.

But the significance of the decision is the application of a 2004 case called McConnell v. State to death penalty cases going back as far as 25 years.

"This court has concluded that the new rule set forth in McConnell is substantive and retroactive," the court said in the Rippo case.

In the Robert McConnell case, the court said that a prosecutor can't convict someone of first-degree murder using a particular circumstance, such as the fact that a killing occurred during a robbery, and then use robbery again in the penalty phase of the trial as an aggravating circumstance to win a verdict of death.

Steve Owens, Clark County chief deputy district attorney, said the court has created a new issue for appeals that will apply to at least half of all death row inmates. There are 83 men on death row in Nevada.

"I've got to think I'm going to lose some," he said "This was a serious thing for a court to do, and they didn't need to do it in my mind. This will drag on for years."

There are a few cases where the only aggravating circumstance that resulted in the death penalty being imposed were those that cannot now be used as a result of the McConnell decision, Owens said. So in those cases, there is no question but that the death sentences will have to be overturned, he said.

Death row inmates that could see their death sentences overturned under this scenario include David Pellegrini and Greg Leonard out of Las Vegas, and Roger Libby and Ronnie Milligan, both cases out of Humboldt County.

There must be at least one aggravating circumstance before the death penalty can be considered in a murder case.

Two other death row inmates have had their death sentences overturned already by Clark County District Judge Michelle Leavitt, who applied McConnell retroactively to them. The rulings in favor of inmates Randolph Moore and Michael Mulder, are on appeal to the Supreme Court.

"Now these cases will come back again, and we'll look at them again to decide for the 20th time if the person deserves death," Owens said. "That is what is going to happen here.

"The law is changed so frequently we can't get a case to stick," he said. "How can we ever bring justice to a victim's family."

But Assistant Federal Public Defender David Anthony, who argued the issue in the Bejarano case, said the opinions show the Nevada Supreme Court is serious about imposing the death penalty only in a narrow set of cases, which is good for the people of Nevada.

The judicial branch is serving as a check on efforts by the legislative and executive branches of government to expand the scope of capital punishment, he said.

"It's a bittersweet victory ... it should have a positive impact on some of the other persons on death row currently," Anthony said.

Las Vegas attorney Christopher Oram, who represented Rippo, said he too was disappointed in what was a 4-3 ruling against a new penalty hearing for his client.

"I'm very pleased that it is being applied retroactively," he said. "I'm disappointed it didn't assist Mr. Rippo. It was a close decision."

Oram also represents Mulder and said he hopes to get a lesser sentence imposed for his client on appeal.

"He had a stroke since he was sentenced to death," Oram said. "He's partially paralyzed. He can walk but he has slurred speech."

Oram said he would like to see Mulder get a chance for parole.

The court, applying its ruling in McConnell to the Rippo case, invalidated three of six aggravating circumstances used by a jury to sentence him to death in the penalty phase of the trial.

Rippo was sentenced to death in 1996 for the robbery and murder of Denise Lizzi and Lauri Jacobson in Las Vegas in 1992. Both women were bound and gagged and strangled.

The jury originally found that six circumstances aggravated the murders: They committed by a person under a sentence of imprisonment; they were committed by a person previously convicted of a felony involving the use or threat of violence; they were committed during a burglary; they were committed during a kidnapping; they were committed during a robbery; and they involved torture. The jury further found that the aggravators outweighed any mitigating circumstances and returned verdicts of death.

The court said McConnell applied to Rippo's case because the district judge in the trial instructed the jury that Rippo was accused of killing the victims, "during the course of committing robbery and/or kidnapping and/or burglary."

"In the penalty phase, the jury found three felony aggravators based on robbery, kidnapping, and burglary -- the felonies that underlay the state's felony-murder theory," said Justice James Hardesty, who wrote the opinion. "These three aggravators therefore must be struck."

But the Supreme Court then reweighed the aggravating and mitigating circumstances and found that the inappropriate use of the three aggravators was harmless error and that the jury would have returned a sentence of death without them. Justice Ron Parraguirre concurred with Hardesty.

Justices Nancy Becker and Michael Douglas disagreed that McConnell should have been applied in Rippo's case, but agreed with Hardesty that the error was harmless and the sentence of death should be upheld.

Chief Justice Bob Rose and Justices Bill Maupin and Mark Gibbons agreed that McConnell applied in Rippo's case, but disagreed that the death penalty could be upheld by the court using the reweighing process. The three instead argued that Rippo should have received a new penalty hearing.

Bejarano was convicted of first-degree murder and sentenced to death for the 1987 killing of a Reno cabdriver during a robbery.

In the opinion written by Rose, the court concluded that the robbery felony aggravator found by the jury during the penalty phase of the trial was invalid due to McConnell. A receiving-money aggravator also found by the jury was based on the robbery and was also found to be invalid.

But four other valid aggravating circumstances remained in the Bejarano case: He was under a sentence of imprisonment, he had two previous felony convictions involving the use or threat of violence, and the murder was committed to avoid or prevent a lawful arrest.