Murder conviction tossed on technical error

CARSON CITY -- A state Supreme Court panel threw out a second-degree murder conviction Thursday against a Las Vegas man because the Clark County district attorney's office did not address constitutional issues raised by opposing lawyers.

Justices on a 3-0 vote threw out the conviction against Levenral Polk and remanded the case back to District Court for a new trial.

District Attorney David Roger said his office will request a rehearing before the Supreme Court. He said the court overlooked a state law that blocks justices from reversing sentences in cases with technical errors.

The errors made by his office were not serious enough to reverse the decision, Roger said.

Now 34, Polk is serving a minimum 10-year sentence for the 1998 murder of his one-time friend, Walter Hodges, at a bus stop in Las Vegas. His original sentence was overturned by the 9th U.S. Circuit Court of Appeals because of improper jury instructions. Then, in 2008, Polk was convicted again on charges of second-degree murder and discharging a firearm out of a motor vehicle.

In the decision Thursday, the court stated the district attorney's office "failed to brief any constitutional issues remotely related" to two U.S. Supreme Court decisions regarding a defendant's right to face his accusers.

This "silence" by the district attorney's office is a "confession of error" and requires the court to reverse Polk's conviction and grant him a new trial, justices stated.

In the decision, justices noted Polk's lawyers at his first trial never cross-examined Michelle Fox, a gunshot residue analyst who tested bullet fragments in the car which he drove at the time of the slaying. Polk was, nevertheless, convicted of first-degree murder, justices stated.

Before his second trial, another gunshot analyst, Laurie Kaminski, retested some of the samples that initially had been tested by Fox, who had retired by 2008. In the appeal to the Supreme Court, Polk's lawyers David Schieck and Jo Nell Thomas argued that Kaminski testimony was inadmissible under U.S. Supreme Court decisions because their client had a constitutional right to confront or cross-examine Fox.

Until a short oral argument hearing before the state Supreme Court earlier this year, the district attorney's office failed to mention the issues brought up by Polk's lawyers, according to the court.

Justices mentioned the U.S. Supreme Court decisions on a defendant's right to cross-examine his accusers was briefed by Schieck and Thomas, but the district attorney's office "failed to supplement its response and elected to wait until oral argument to address the constitutional issue ..."

Thomas, reached in Las Vegas, said she had argued the district attorney's office "confessed error" by its failure to address the issues she raised.

The decision was issued by Justices Jim Hardesty, Kris Pickering and Michael Douglas.