Dead of Night (23 page)

If the minds of the jurors were such that they could say they felt the charge was true after comparing and considering all the evidence, the judge said, then there was not a reasonable doubt. Doubt, to be reasonable, must be actual, he said, not mere possibility or speculation.

The judge then told the prospective jurors that at the end of that phase, the jury would deliberate and render a verdict limited to whether or not Biela was guilty of any, or all, of the offenses with which he was charged. There would then be a second phase—if, and only if—the jury found Biela guilty of murder in the first degree. During the second phase, evidence of aggravating and mitigating circumstances would be submitted upon which the jury would separately decide whether or not it found this to be an appropriate case in which to impose the death penalty.

Judge Perry continued his comments from that point by telling the jurors that a sentence of death is not automatic, and the jury could impose a sentence of a definite term of fifty years, life with the possibility of parole, or life without the possibility of parole, instead.

Biela’s appeal attorneys stated that they believed that the judge had invited the jury to convict on first-degree murder in order to get a death penalty hearing. This instructional error, they said, required a remand for a new trial.

Finally, to close the brief’s comments on the trial phase, it claimed that the accumulated error in the trial denied Biela his right to a fair trial:

Chapter 29

The next section of the opening brief then moved on to the penalty phase of the trial, and the first argument presented in the brief concerning the penalty phase held that the penalty instructions had misleadingly informed the jury that it had to find “beyond a reasonable doubt” that the mitigating evidence outweighed the aggravating circumstances in making its death penalty determination.

In Nevada, the brief said, the death penalty was an available punishment only if the state could prove beyond a reasonable doubt that at least one aggravating circumstance existed, and that the aggravating circumstance or circumstances outweighed the mitigating evidence offered by the defendant. The jury instructions in Biela’s case, however, seemed to have been inadvertently reversed. The jury was told that they had to find that the
mitigating
circumstances offered by the defense outweighed beyond a reasonable doubt the prosecution’s
aggravating
circumstances in order to preclude consideration of the death penalty.

As an example, the Biela jury was instructed that first-degree murder was punishable by death, but
only if one or more aggravating circumstances are found beyond a reasonable doubt and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstances.

The jury was also told that if they found unanimously and beyond a reasonable doubt that at least one aggravating circumstance exists and
each of you determines beyond a reasonable doubt that any mitigating circumstances do not outweigh the aggravating,
then the defendant is eligible for a death sentence.

Those instructions and others along the same line, which were repeated at several points during the trial, told the jury that it had to find, beyond a reasonable doubt, that the mitigating circumstances did not outweigh the aggravating. Those instances of instructional error on a very pivotal factual determination, the brief stated, undermined the reliability of the jury’s verdict. Consequently, then, Biela was entitled to a new penalty hearing before a properly instructed and newly impaneled jury. Alternatively, the brief said, the court could set aside the sentence of death and impose the sentence of imprisonment for life without the possibility of parole.

 

 

In the final point that was made in the opening brief, it stated that a law, NRS 177.055 (2), required that the court conduct an independent review to determine whether the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor; and whether the death penalty was excessive, considering both the crime and the defendant. This would prove to be the most lengthy of the arguments presented in the brief. The law named above required the court to review the record to consider:

When the state filed its Notice of Intent to Seek Death Penalty, it had identified the four counts against Biela, if proved, as its aggravating circumstances. The jury found that the state had proved the murder charge and each of the other counts beyond a reasonable doubt. In this appeal, Biela’s attorneys challenged the sufficiency of the evidence offered to prove count 1, sexual assault against Amanda Collins. They submitted that even in the face of all the aggravating circumstances, death was still not the appropriate penalty.

The brief first elaborated on why the sentence of death was excessive considering both the crime and the defendant.

The facts that were presented to the jury concerning the Brianna Denison case allowed them to find that Brianna had been sexually assaulted and murdered. The evidence was not clear if the assault had taken place in the MacKay Court residence or in another location. It did not appear from the evidence that there was a great deal of time that had passed between Brianna’s abduction and when her body had been left in the field.

One interpretation of these facts could conclude that this was a case where the sexual assault had gone terribly wrong and Brianna’s accidental death occurred during the commission of a felony. This interpretation would remove the fourth aggravating circumstance from consideration by the jury. The brief went on to contend that the homicide involved only one victim, did not involve torture, depravity (clearly, this was the opinion of the appeal counsel, not the vast majority of the general public), poising, or lying in wait, and did not take place over an extended period of time.

The things that took Brianna’s murder out of the ordinary were three things: Brianna herself, who became known by the media and the public as “Reno’s Daughter”; the span of time between when she was first reported missing and when her body was found several weeks later in a field, even though the body had clearly been placed there on the same day she was taken; and the span of time between the discovery of her body and Biela’s arrest, aided by the assault of the other two victims and the information they had been able to supply to the investigation.

Because of the tremendous amount of media coverage, the flood of Secret Witness tips received over time, the public blue ribbon campaigns, and the BBJF’s work, Brianna Denison’s murder became a “media case,” resulting in it also becoming a death penalty case, according to the brief.

The jury found twenty-two out of the twenty-four specific mitigating circumstances that the defense identified in regard to James Biela, along with one other mitigating factor—that being the fact that he had allegedly shown kindness to Virgie Chin by giving her a tissue when she asked him for one. It was proved that he had no significant criminal history before the joined charges in this case, and Dr. Piasecki’s testimony had established that he was not a high risk for any dangerous behavior in the future. And finally, the brief contended, the evidence had shown that Biela had been a good employee, a good father to his little boy, and a good provider for the child and his mother.

According to the brief, the death sentence was imposed under the influence of passion, prejudice, and other arbitrary factors. It was made very clear that the Brianna Denison case received an extraordinary amount of publicity from the time of her disappearance through the discovery of her body and then on to Biela’s subsequent arrest. This was made clear in the testimony of Detective Jenkins and many other witnesses, along with the other evidence that had been presented at the trial. It was reported by the
Reno Gazette-Journal
that the Bring Bri Justice Foundation had been set up by the middle of 2008, and the Reno-Sparks area was covered with blue ribbons, along with the surrounding communities in northern Nevada.

An avalanche of Secret Witness tips had come in, and the media received details about the suspect they were looking for. Descriptions of the vehicle possibly driven by the suspect, and details about the baby shoe spotted on the floorboard, along with the police sketch created with the help of Amanda Collins, were all reported in the media. The brief also mentioned what it called the publication of “suggestive details,” such as the suspect’s shaved pubic area, and told of the information released about the thong panties found at the crime scene, calling it significant. According to the brief, it was fair to say that the media’s publication of this story dominated the local electronic and print news cycles for months, especially when Brianna’s body was found.

The community had been in fear that a sexual predator was at large before Biela was arrested, and it made headline news when he was apprehended. When jury selection was taking place, many jurors were let go because they admitted to having already made up their minds about Biela’s guilt and how he should be punished. The brief stated that, as it had said earlier, nothing about the actual murder took it out of the range of an ordinary first-degree case. What had caused it to be perceived as a death penalty case, claimed the brief, was Brianna and the interest of the public in her case, the time span between her death and the discovery of her body, and Biela’s arrest.

According to the massive publicity surrounding this case, the brief said, Biela was singled out for the death penalty. Put another way, to uphold the death penalty in this case allowed the death penalty to be
cruel and unusual in the same way that being struck by lightning is cruel and unusual
and allowed the
unique penalty that is the death penalty
to be wantonly applied. The brief stated that by asking the crucial question:
“Are the crime and the defendant before us on appeal of the class or kind that warrants the imposition of death?”
The court would have to answer its question in the negative and set aside the death penalty in the case.

The death penalty in this case is excessive and is the product of forces beyond the crime itself and Mr. Biela,
stated the brief.
This court should set aside the sentence of death and impose the sentence of imprisonment for life without possibility of parole.

 

 

The conclusion of the brief stated that, based on the information presented and the record as a whole, James Biela’s convictions should be set aside and the cases remanded for a new trial. And even if the court affirmed his convictions, it must still set aside the sentence of death and either remand for a new penalty hearing or order that a sentence of life without the possibility of parole be imposed in the place of the death sentence.

The brief was submitted on March 28, 2011.

 

 

On July 20, 2011, when filing their Respondents’ Answering Brief, prosecutors contended that no court errors were made during Biela’s trial, and his convictions and death sentence should be affirmed by the state supreme court. In their statement of the case, they said that the opening brief’s version of the history of the case was accurate, but not complete. One of the main points—the opening brief’s stated objection to the combination of the three cases into one trial—was not valid, the prosecution said.

Appellate DDA Terry McCarthy, who wrote the response, made his statement of the facts, beginning with the apparent acceleration of Biela’s crimes. He noted that they all took place over a three-month period, all of the victims were of college age, and the crimes all occurred within a four-hundred-yard radius, resulting in a “sufficient connectedness” between the crimes to try them before the same jury at one time. The investigations and the evidence all overlapped between the three cases, the response said, and that overlap was what allowed all three cases to be cleared. For example, the sketch Amanda Collins had helped detectives to prepare when she came forward had become an integral part of all three investigations.

The close proximity to Virgie Chin’s assault in relation to the place where Amanda was attacked, “scant yards” away, was another connecting factor. And Virgie had recalled enough details from her assault that she was able to provide other clues and information that proved connectedness between the cases. She had also been able to recall many details that would, after Biela’s arrest, link DNA evidence between her case and Brianna’s.

When the initial motion to sever was made prior to the trial, the motion was decided based on predictions as to what evidence would be presented, with the district court predicting that substantial amounts of the evidence would be cross-admissible in the three cases.

The state contended that there was no error made by the court in allowing the cases to be combined for trial. One of the factors weighed by the district court, the state said, was the inefficiency and cost of separate trials. The expense of multiple separate trials was a legitimate consideration, the state said, and, ultimately, the question of whether charges could be tried together was also whether there was a logical connection between them. In another case, the state supreme court had previously ruled that cases were connected whenever evidence of one crime was admissible in a trial concerning another crime.

One way in which crimes can be connected, the state said, is by temporal and geographic proximity. Biela’s crime spree covered a three-month period; and each of the attacks, always on college-aged young women, took place within only a four-hundred-yard radius.

The response said,
That is a connection. A very close connection. It is difficult to envision a trial on any one of these crimes that would not have had at least some reference to the others.

The overlap in the identity of the witnesses was extreme, the prosecution claimed. The detectives in each case were the same; the crime against Amanda came to light because of the crime against Brianna; the crime against Brianna was solved by simultaneously investigating all three of the cases.

There is zero reason to believe that the decision [to connect the cases] was whimsical, or random, or based on a toss of the coin. Instead, there is every reason to believe that Judge Perry carefully evaluated each appropriate factor,
the response said.
Under those circumstances, the court should find no abuse of discretion.

The response also said that Biela’s attorneys had failed to demonstrate prejudice with his claim that the jury must have used the stronger cases to convict on the weaker case, and saying that the jury must have “gone rogue” because the evidence in the Amanda Collins case was insufficient to convict. The other claim of prejudice was a contention that the DNA evidence was confusing. Since there was no evidence that any juror had been confused by any bit of evidence, or that such confusion would not have also occurred, had there been separate trials, the fact that the judge was confused by the DNA evidence for a moment prior to the start of the trial should not be seen as a valid claim of prejudice.