New trial ordered for man sentenced to death for killing 2 prostitutes

CARSON CITY — The Nevada Supreme Court ordered a new trial Thursday for a Las Vegas man given two death sentences for killing two prostitutes a decade ago, finding that the prosecution engaged in “purposeful discrimination” in jury selection.

Justices in a 4-3 opinion said the peremptory exclusion of a prospective juror — a black woman who had worked as a cocktail waitress at a strip club before returning to school as a full-time student — was a “mere pretense for purposeful discrimination.”

The ruling vacated the conviction and sentence of Jason McCarty, convicted of killing two prostitutes in 2006. The bodies of Victoria Magee, 26, and Charlotte Combado, 34, were found by a man walking his dog in the desert in Henderson. The women were kidnapped and taken to the desert, where they were beaten to death with rocks and a golf club. A co-defendant, Dominic “D-Roc” Malone, was tried separately and sentenced to life in prison.

Police reports at the time said Malone had threatened to kill the victims and another woman if they didn’t make money for him. McCarty, in initial interviews with police, denied killing the women but admitted helping discard evidence.

But prosecutors contend Malone and McCarty were “wannabe pimps” and drug dealers who acted together.

Thursday’s ruling sends the case back to Clark County District Judge Michael Villani.

There are 82 people on Nevada’s death row. The last prisoner executed by lethal injection was Daryl Mack on April 26, 2006, for the rape and murder of a Reno woman, Betty Jane May, in 1988.

McCarty was convicted of 15 felonies and one gross misdemeanor, including two counts of first-degree murder with a deadly weapon, kidnapping, robbery and pandering. He was given a death sentence for each murder conviction.

According to court documents, after five days of jury selection the pool or prospective jurors was narrowed to 36. Prosecutors used 10 peremptory challenges, using two of them to strike two of three remaining African-Americans from the panel. McCarty objected, claiming the exclusions were discriminatory and focused on the elimination of juror No. 36, a married, 28-year-old mother of two who was a full-time college student.

Prosecutors said they had performed a law enforcement background check on the woman to try to find out why her brother had been incarcerated. During that investigation they learned she had a valid work card for an adult nightclub.

Prosecutors said the juror’s exclusion had nothing to do with race, arguing the state was not “going to leave somebody who works at a strip club on their panel.”

Defense lawyers said the work card was obtained more than three years prior. Villani rejected their arguments, saying it “sounds like your argument here is for the Supreme Court.”

Justices dismissed the state’s reasoning that it struck the juror because she held a work card.

“If indeed, prospective juror 36’s possession of a valid work card for an adult nightclub made the state uneasy, it should have also been worried about the other 34 prospective jurors on whom it did not conduct a … background check to determine whether they had obtained a valid work card within the last three years,” said the opinion authored by Justice Michael Cherry.

“This kind of disparate treatment supports our conclusion that it is more likely than not that the reasons given for striking prospective juror 36 were mere pretext for purposeful discrimination.”

Justices Ron Parraguirre and Nancy Saitta concurred in the opinion. Justice Michael Douglas agreed and wrote his own reasoning to highlight what he called the judge’s failure to adequately address the issue at trial.

Justices also discounted the prosecution’s argument that the woman was struck because her brother was prosecuted 13 years earlier and it did not want jurors who had family members convicted of a violent crime.

The majority said there was no evidence the woman’s brother was ever convicted of a crime of violence. Justices also said three other prospective jurors said they were close to people who had run-ins with the law but they were allowed to stay.

Justices Kristina Pickering, James Hardesty and Mark Gibbons dissented, finding that juror’s exclusion acceptable and that the judge handled the challenge “with care.”

“The defendant was charged with murdering two women he had been pandering as prostitutes and using to help him deal drugs,” said Pickering, writing for the minority.

“Given these alleged facts, not wanting a woman who worked or had recently worked at a strip club on the jury provided a facially race-neutral reason for the peremptory challenge.”

Contact Sandra Chereb at schereb@reviewjournal.com or 775-461-3821. Find @SandraChereb on Twitter.