Va. court hears appeal of man on two death rows

A man on death row in two states is entitled to a new sentencing in Virginia because the jury that convicted him of the 1988 slayings of two college sweethearts was given unconstitutional verdict forms, the inmate's lawyer argued in court yesterday.

Attorney Michael A. Siem told the Virginia Supreme Court that the forms failed to provide an option for the jury to sentence Alfredo R. Prieto to life without parole even if it found he was eligible for the death penalty because the crimes were vile or because Prieto would pose a danger to the public.

An attorney for the state, Matthew P. Dullaghan, said the trial judge made that option clear in his jury instructions.

Prieto, 43, was already on death row in California for raping and murdering a 15-year-old girl when a DNA sample connected him to the rape and murder of Rachel Raver and the slaying of her boyfriend, Warren Fulton III, in Reston.

The bodies of Raver and Fulton, both 22, were found in a wooded area on Dec. 6, 1988, a few days after they were seen at a Washington nightspot. Both had been shot. The crime was unsolved until California entered a sample of Prieto's DNA into a national database that matched samples from the Virginia crime scene.

In February 2008, a Fairfax County jury convicted Prieto of capital murder and gave him two death sentences.

"The jury must be able to find the two aggravating factors and still impose a life sentence," Prieto's attorney said, adding that it doesn't matter what the judge tells the jury if the forms provide no option for carrying out the instruction.

The argument seemed to resonate with several justices, who pointed to previous court rulings that explicitly require the option on the jury forms.

Dullaghan said the judge's instructions conformed with a paragraph in the verdict forms that allows the life sentence even if the defendant is death-eligible but does not specifically address whether the jury found unanimously that one or both of the aggravating factors exist.

Chief Justice Leroy R. Hassell Sr. asked Dullaghan if he was suggesting that some jurors could find vileness and others could find future dangerousness to conclude a defendant is eligible for the death penalty. Dullaghan said he was, but the justices didn't sound convinced.

"How can a jury be allowed to mix and match?" Hassell said.

Siem also said his client was denied evidence that could have cleared him because the state lost a hair sample that did not match Prieto's hair. He said the hair could have implicated another suspect.

But Dullaghan argued that the sample could not be exculpatory evidence because it was lost before Prieto was identified as a suspect.

The court probably will rule on Sept. 18.