Tracy Petrocelli, who has also been known as John Maida, is a man convicted of three killings in three states within about six months. Melanie Barker, his 18-year-old girlfriend, died in the Seattle area of Washington in October 1981. Dennis Gibson, 30, died in California in 1981. James Wilson, 63, died in Reno, Nevada, in March 1982. Petrocelli was convicted of each death, though not in the order in which they happened, and not within the same decade.
Only the Nevada case produced a death sentence, and that sentence has been before the courts for more than forty years. A Washoe County jury imposed it in 1982. The Ninth Circuit Court of Appeals set it aside in 2017, a second Washoe County jury imposed it again on May 16, 2019, and the Nevada Supreme Court reversed it on May 21, 2021. Through all of it the Nevada conviction itself has stood. His appeal in the 1980s also gave Nevada law a rule of its own: after the Nevada Supreme Court ruled on his case, prosecutors had to persuade a judge at a pretrial hearing that evidence of "prior bad acts" could be put before a jury, a procedure that became known as a Petrocelli hearing.
The first victim was Melanie Barker, 18, his girlfriend and fiancée. In May 1981 Petrocelli pleaded guilty in Washington state to kidnapping her. The sentence was suspended. Barker died in October 1981 in the Seattle area.
The Washington court that later convicted him of her murder, the year of that conviction and the sentence are not on record. At the time of his Nevada trial in 1982 he had not been convicted of her killing, though the jury in Reno heard about it. Her death is one of his three murder convictions.
Dennis Gibson, 30, died in California in 1981. His death was not prosecuted until the late 2000s. Petrocelli, by then a prisoner on Nevada's death row, pleaded guilty to second-degree murder in the Gibson case. The California court and the term imposed are not on record.
James Wilson, 63, died in Reno in March 1982, about five months after Barker. Petrocelli was arrested in Las Vegas in April 1982 and held in the Washoe County jail on murder and robbery charges.
The guilt phase was held in Washoe County from July 27 to August 5, 1982. The jury found Petrocelli guilty of robbery and first-degree murder. At the penalty phase the same jury sentenced him to death. A psychiatrist retained by the prosecution testified at the penalty phase. Petrocelli had been interviewed by that psychiatrist without his lawyers being notified and without warnings of his rights, and that circumstance would decide the sentence years later.
In 1985 the Nevada Supreme Court affirmed the conviction and the death sentence. That year he was sent to death row. The ruling also set out a three-part test for admitting evidence of other acts at trial.
A state post-conviction petition was denied on the merits. A first federal habeas petition was dismissed without prejudice because some claims had not been presented to the state courts; when he returned to state court those claims were dismissed as procedurally defaulted. He filed a second federal petition on October 28, 1994, representing himself, and a counseled amended petition followed in 1996. The district court denied relief in September 1997. In 2001 the Ninth Circuit reversed in part and remanded. A third state petition was denied in 2003, and the Nevada Supreme Court affirmed that denial. The appeal from the denial of his fourth amended federal petition was argued on September 16, 2016.
On July 5, 2017, the Ninth Circuit issued its opinion in his case, amended on August 23, 2017, with rehearing and rehearing en banc denied. The panel affirmed the district court's denial of the writ with respect to the conviction. It rejected his claims that his statements to police at an April interrogation should have been suppressed, holding that he had not unambiguously invoked his right to counsel, and it found the statements voluntary.
The panel reversed as to the death sentence. It held that admitting the psychiatrist's testimony at the penalty phase violated his Fifth and Sixth Amendment rights under Estelle v. Smith, and that the error was not harmless because it had a substantial and injurious effect on the sentence. Judge William Fletcher wrote the opinion; Judge Christen concurred. The court found a "flagrant violation" of his constitutional rights, made worse by an erroneous jury instruction about the chances of release under a sentence of life without parole. The court remanded with instructions to grant the writ as to the penalty unless, within a reasonable time, the State granted a new penalty phase trial or imposed a lesser lawful sentence.
At that point Petrocelli had spent nearly 35 years in custody and was one of the longest-serving prisoners on Nevada's death row. His lawyer, A. Richard Ellis, declined to comment beyond saying that the opinion spoke for itself. The Washoe County District Attorney's office, then led by Christopher Hicks, and the Nevada Attorney General's office, led by Adam Laxalt, were reviewing whether to hold a new penalty trial or seek a lesser sentence such as life without parole.
Washoe County chose a new penalty hearing. Jury selection opened in Reno on May 6, 2019, before District Judge Egan Walker, who excused 19 prospective jurors, among them a retired Reno detective who said he was prejudiced in favor of the death penalty. The hearing proper began on Friday, May 10, and was expected to last about three weeks. Jurors could choose death, life in prison with the possibility of parole, or life in prison without parole.
Deputy District Attorney Luke Prengaman asked for death and argued that the other two murders were aggravating factors under Nevada law. Public defender Jaclyn Millsap told the jury that Petrocelli had been a model prisoner for 37 years and was capable of change. She said the defense would not ask for a sentence that would let him go free, and asked the jurors for life without parole.
The hearing ended well ahead of the forecast. On Thursday, May 16, 2019, after about three hours of deliberation, the jury unanimously rejected life without parole and sentenced him to death for the second time. Petrocelli was then 67. Judge Walker had not set a date for formal sentencing.
Petrocelli appealed again. On May 21, 2021, the Nevada Supreme Court reversed the judgment and remanded for a new sentencing hearing. Deputy Public Defender John Petty had argued that the verdict forms confused the jurors and made their verdict unreliable.
The court found that the forms for the two life sentences carried language that belongs only on a death verdict: a finding that the mitigating circumstances "are not sufficient to outweigh the aggravating circumstance found." Petrocelli had conceded both aggravating circumstances, so the weighing of mitigating against aggravating circumstances was the live question at the hearing, and the forms bore on exactly that. Justices James Hardesty, Lidia Stiglich, Elissa Cadish and Abbi Silver formed the majority. Their opinion said: "We conclude that the error affected Petrocelli's substantial rights and he is entitled to a new sentencing hearing." They also concluded that he had demonstrated plain error. Justice Douglas Herndon, joined by Justice Ron Parraguirre, dissented, finding no error or, alternatively, a harmless one, since the jury had been properly told it could choose a sentence less than death. Justice Kristina Pickering took no part.
The vote was 4 to 2. Washoe County prosecutors had to decide whether to keep seeking the death penalty; they did not respond to a request for comment at the time of the ruling. A later hearing or sentence is not on record. No one has been executed in Nevada since 2006.
The sentences for the Washington murder conviction and the California conviction are not on record, and neither are the courts and exact dates of those two convictions. The California conviction is a guilty plea to second-degree murder in the late 2000s. The Nevada conviction was left standing by the Ninth Circuit in 2017 and was not at issue in the Nevada Supreme Court's 2021 ruling. Whether a third penalty hearing has been held after the 2021 reversal is not on record.
May 1981: Petrocelli pleads guilty in Washington to kidnapping Melanie Barker; sentence suspended.
October 1981: Barker dies in the Seattle area; Petrocelli later convicted of her murder (court, year and term not on record).
1981: Dennis Gibson dies in California; Petrocelli later pleads guilty to second-degree murder (late 2000s).
March 1982: James Wilson dies in Reno.
April 1982: Petrocelli arrested in Las Vegas.
July 27 to August 5, 1982: guilt phase in Washoe County; guilty of robbery and first-degree murder; jury returns death.
1985: Nevada Supreme Court affirms; he is sent to death row.
October 28, 1994: second federal habeas petition filed.
September 1997: federal district court denies relief.
2001: Ninth Circuit reverses in part and remands.
2003: third state petition denied; affirmed by the Nevada Supreme Court.
September 16, 2016: Ninth Circuit hears argument.
July 5, 2017 (amended August 23, 2017): Ninth Circuit leaves the conviction in place and reverses the death sentence.
May 6 to 16, 2019: resentencing in Washoe County; jury returns death on May 16.
May 21, 2021: Nevada Supreme Court reverses, 4 to 2, and remands for a new sentencing hearing.