Lawyer for girl's killer critic of judicial elections

Attorney argues judges are beholden to voters who want man executed

By Scott Sonner
Associated Press

RENO, Nev. (AP) — 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 told The Associated Press. 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, rather it’s 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 defer 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 ‘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 by a margin of 58 percent to 42 percent.

Janine Hansen, president of the Nevada Families Eagle Forum and national committee woman for the Independent American Party, was among those who testified before the state Senate against the last ballot measure. She said it might have made sense to switch judges for Ybarra’s case but that’s no reason to do away with judicial elections.

“This is a government that is supposed to be of the people, for the people, by the people,” Hansen said Thursday. “We have a better chance being judged correctly by someone determined by the will of the people.”

At Ybarra’s six-monthlong trial in 1981, public defenders were denied motions for a change of venue as well as removal of the judge even though he provided legal representation to members of Griffith’s family when he was in private practice.

Judge Steve Dobrescu acknowledged he helped Griffith’s parents prepare a will and represented her sister in an adoption proceeding.

But he argued that in such a small rural county (population of about 7,000 at the time) it would be impossible to find many people who wouldn’t have known the girl or her family and even harder to find someone who did not have relatives who had been represented by a district judge when the judge was in private practice. He said disqualification would mean that “every high profile case would have to be heard by a visiting or senior judge.”

During jury selection, Pescetta said, “it turned out that, yes, it is quite true that everybody does know everybody.”

But he said that’s all the more reason that a judge in such a community should not be subject to the whims of voters.

“This is a very tragic case in a lot of ways,” Pescetta said in an interview this week from Las Vegas. “And whether this sort of problem is tolerable in civil cases is an issue I don’t have to think about. But when it is a capital case and we’re putting someone to death, we need to be a little more anxious about it.”