David Nickels back in court for retrial

EPHRATA — David Nickels was back in Grant County on Tuesday after an appellate court overturned his past murder conviction.

Nickels, of Helena, Mont., was convicted in 2012 of murdering 35-year-old Ephrata resident Sage Munro on the doorstep of his Ephrata home in 2009. Prosecutors alleged Nickels shot Munro because he was dating Nickels' ex-girlfriend. Nickels was identified as a suspect in the case through cellphone records and DNA.

Nickels’ attorneys presented an alternative theory to the jury that alleged Munro was murdered by a local methamphetamine addict. Nickels ultimately received a 25-year prison sentence in 2013 for first-degree murder. Nickels filed a motion after the verdict was handed down, stating there was permissive language in the “to convict” instruction given to the jury. The trial court shot down the request and Nickels appealed the decision.

The jury instruction, which was given by now-retired Grant County Superior Court Judge Evan Sperline, read as follows:

“If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then you should return a verdict of guilty.”

“On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then you should return a verdict of not guilty.”

The Washington Court of Appeals, Division III, ruled the instruction “deviated” from the standard instruction that is set in the Washington Pattern of Jury Instructions. The judges concluded the word “should” in the instruction constituted a structural error and Nickels’ murder conviction was reversed and the case was remanded back to Grant County for a retrial.

That ruling brought Nickels back to Grant County Superior Court for a hearing Tuesday afternoon. Discussed during the hearing was the issue of whether or not defense attorneys Jacqueline Walsh and Mark Larrañaga, who were hired by Grant County to defend Nickels in 2010, are still on contract to continue representing Nickels.

Because Nickels was appointed a new attorney for his appeal, and Walsh and Larrañaga only served in a pro-bono capacity during the appeal process, Deputy Prosecutor Kevin McCrae suggested the court go through its normal process of appointing Nickels a new attorney at public expense.

“In every place I’ve seen after coming back from an appeal there is a new attorney appointed. Who appoints that attorney and who decides who that is, is usually beyond the purview of the prosecutor’s office,” McCrae stated. “But I note that Ms. Walsh and Mr. Larrañaga are not in the normal process of appointment. They may not have filed the paperwork to withdraw, but Mr. Nickels did get a new attorney on appeal. They were not the appellate attorneys so I think that would effectively mean they are no longer on the case.”

Walsh said there was never a motion submitted by Larrañaga or herself to withdraw and it is her position their 2010 appointment still stands.

“Mr. Nickels has the right to the counsel of choice. And we are his counsel of choice and have been so for the last seven years. It was up to us to decide whether we wanted to provide additional work at an appellate court on a pro-bono basis and we did consult with his appellate counsel,” Walsh stated. “But that doesn’t change the fact that we have always been his attorneys at a trial level and never withdrew.”

Citing a conflict of interest, Walsh also raised the question of whether or not the Grant County Prosecutor’s Office should be allowed to prosecute the case.

The prosecutor's office previously requested the Kitsap County Prosecutor's Office take on the Nickels appeal, citing conflicts of interest. The conflicts of interest involved Grant County Prosecutor Garth Dano acting as a commentator on the trial for a local news agency and Chief Deputy Prosecutor Alan White representing a key witness in the case, whom the defense had accused of committing the murder, according to a previous Columbia Basin Herald report.

Both the state and defense will be submitting briefs on the issues. Grant County Superior Court Judge David Estudillo set a new trial date of June 21.

Richard Byrd can be reached via email at city@columbiabasinherald.com.