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RENO — (Associated Press) - Nevada’s Supreme Court justices are being asked to clarify state laws on self-defense and defense of others as they consider whether to revisit their recent reversal of a high-profile murder and conspiracy conviction in a 2011 casino shootout between rival biker gangs.
The Washoe County district attorney has asked the high court to reconsider its Dec. 31 ruling overturning the conviction of Ernesto Gonzalez, the ex-president of the Vagos chapter in Nicaragua who was sentenced in 2013 to up to life in prison.
The justices ordered a new trial based partly on the district judge’s faulty instructions to the jury that found him guilty of killing Jeffrey “Jethro” Pettigrew, 51, former president of the Hells Angels in San Jose, California.
It’s not clear when the Supreme Court will decide whether to grant a rehearing or affirm the earlier decision to send the case back to court in Reno.
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Prosecutors said the shooting on a busy casino floor in Sparks was an orchestrated hit, stemming from a long-running feud between the rival gangs in California.
Gonzalez, 57, who was living in San Francisco, said he opened fire only because Pettigrew and another Hells Angel were kicking a fellow Vagos member, Robert Wiggins, so hard in the head he thought they would kill him.
In asking the for a rehearing, District Attorney Chris Hicks said the justices didn’t place enough weight on casino surveillance video that he says shows Vagos members acting in concert when they gathered “to form a gauntlet” moments before a brawl broke out and gunfire erupted at the Nugget hotel-casino in September 2011.
Gonzalez’ lawyer suggested in his latest brief that prosecutors simply were trying to delay Gonzalez’ release from prison, given that the Supreme Court “very rarely reverses judgments of conviction in high-profile murder cases” but had done so in this case unanimously, 7-0.
“The video in this case indeed corroborates the fact of a homicide. But homicide committed in defense of others is a lawful homicide,” defense attorney Richard Cornell said.
Because he was acting in the “defense of others,” Cornell said Gonzalez was not subject to the same legal requirements as those who claim self-defense, including that they not be the “primary initial aggressor.”
“In that sense, defense of others and self-defense are very different concepts,” he wrote.
Cornell acknowledged in the brief filed last week that “unlike self-defense, the bar and bench do not have a good opinion out of this court that addresses” the distinction.
“If the court is to do anything with this petition other than summarily deny it, the court should deny it and affirm as modified, making clear to the parties that defense of others does not require that the person slain is not the initial deadly aggressor,” he said.
Cornell said based on the prosecution’s flawed theory and the instructions that were provided to the jury, Gonzalez “had the duty to stop Pettigrew in ‘mid-stomp,’ ask him whether he so happened to be the primary initial aggressor in the fight; and when he responded in the negative — even if lying — allow Pettigrew then to stomp Wiggins to death.”
“That construction of the law not only is nowhere contained in (the law) but it is positively absurd,” he said.
Cornell said in an interview Wednesday he hopes the justices take the opportunity to provide some clarification.
“That statute is as old as Nevada,” he told The Associated Press. “You can imagine back in the days when you had bar fights in the Wild West, it was a viable concept, that if killed someone in Deadwood in defense of others, you went free.
“But of all the case law developed on self-defense over the years, we still don’t have a good case on defense of others.”
