Argument in appeal: antipathy

RENO — Robert Ybarra was arrested for the murder of Nancy Griffith in 1979 because the 15-year-old high school student survived long enough to identify him for police after he raped her, doused her in gasoline, lit her on fire and left her for dead near a trailer park north of Ely about 50 miles from the Utah line.

Sentenced to death 32 years ago, perhaps the most vilified man ever to pass through White Pine County still stirs strong reaction in the community. To this day, the local Historical and Archaeological Society devotes a considerable section of its website to “Nancy Griffith’s Heinous Murder.”

“Mr. Ybarra’s case is the most notorious in the history of White Pine County,” public defender Michael Pescetta said. “Memories of the offense have not faded.”

It’s that notoriety and the community’s near universal loathing of Ybarra that Pescetta is trying to capitalize on to spare the killer’s life.

Pescetta argues in his latest petitions in U.S. District Court in Reno that it’s impossible for anyone accused of such a reprehensible killing to get a fair trial in Nevada because the state’s judges are beholden to voters who won’t tolerate jurists they view as soft on crime, especially in high-profile murders.

It’s especially a problem, he said, in smaller communities where everybody knows everybody and where letters to the editor at the Ely Times suggest things such as: “The only way to execute Ybarra is to get some of the poorest archers and have them shoot blunt point arrows at him until his execution is completed.”

“The entire fabric of the community in White Pine County is so hostile to Mr. Ybarra that any local judge would simply destroy his career by ruling in Mr. Ybarra’s favor,” Pescetta wrote in a supplemental filing Jan. 14 questioning the impact of judicial elections on such cases.

Twice denied review by the U.S. Supreme Court, Ybarra’s appeals over the years have focused on whether he’s legally mentally disabled and can’t be killed because of the high court’s ruling in Virginia in 2002 that concluded executing such defendants is cruel and unusual punishment prohibited under the Constitution.

The appeals are aimed at removing him from death row, not keep him from spending the rest of his life in prison, Pescetta said. He said he wasn’t familiar with the election argument being advanced in other states.

Robert Wieland, Nevada’s senior deputy attorney general handling the appeal on behalf of the state, declined to discuss the case. “I prefer to try my cases in the courtroom,” he said . He argues in court papers that it’s too late for Ybarra’s lawyers to raise a new legal argument. He said they never mentioned it in two previous appeals at the state level or three in federal court.

“Ybarra waited quite literally years to make the argument ... (which) merely reflects his disagreement with this court’s order and such disagreement is not a basis upon which relief can be granted,” Wieland wrote.

Pescetta counters that it’s not a new argument but rather a basis to reconsider past rulings denying Ybarra’s status as mentally disabled because it’s a special situation — namely a capital case with an elected judge — where the federal government cannot show its usual deference to state court rulings without violating his equal protection rights under U.S. law.

“The District Court could not be expected to be impartial,” Pescetta said. “Nevada law does not include any mechanism for insulating state judges and justices from majoritarian pressures which would affect the impartiality of ‘an average person’ as a judge in a capital case.”

In Nevada, members of the bench, including justices of the peace, state court judges and even justices on the Nevada Supreme Court, are elected. Nevada voters have rejected ballot measures that would have moved away from the general election of judges three times since 1972, most recently in 2010 .