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High Court Says 1991 Ruling Was Retroactive

March 30, 1994

WASHINGTON (AP) _ The Supreme Court told Nevada’s highest court today to restudy the murder conviction and death sentence of a man accused of beating to death his girlfriend’s 4-year-old daughter.

The justices said a 1991 high court decision generally requiring court hearings within 48 hours of arrests made without warrants applies retroactively to Kitrich Powell’s prosecution in Nevada.

Perhaps more significantly, however, the court said a violation of its 48- hour rule doesn’t always have to result in reversal of a criminal conviction.

The 1991 ruling applies to all prosecutions ″pending on direct review or not yet final,″ Justice Ruth Bader Ginsburg wrote for the court today.

But, she added, that doesn’t mean Powell ″must be set free or gain other relief, for several questions remain open for decision″ by the Nevada Supreme Court.

The 7-2 decision said the state court must consider:

-The appropriate remedy for a four-day delay between Powell’s warrantless arrest and a court hearing to determine whether police had ″probable cause″ to believe he had committed a crime.

-The consequences of Powell’s failure to raise the delay issue at his trial.

-Whether the use as trial evidence of statements Powell made between his arrest and court appearance amounted to harmless error.

″Expressing no opinion on these issues, we hold only that the Nevada Supreme Court erred in failing to recognize ... retroactive application of (the 1991 decision’s) 48-hour rule,″ Ginsburg said.

Although technical, the ruling has the potential of affecting hundreds of prosecutions nationwide each year.

The Clinton administration had urged the court to rule as it did - that a violation of the 48-hour rule should not automatically result in throwing out a conviction.

Powell was convicted of the November 1989 beating death in Las Vegas of Melea Allen.

Prosecutors said the child had suffered massive head and spinal injuries before Powell brought her to a hospital on Nov. 3. Powell was arrested at the hospital for child abuse.

Powell was still in police custody when on Nov. 7 he agreed to answer more police questions. He did not receive a court hearing until later that day.

Ginsburg’s opinion was joined by Justices Harry A. Blackmun, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and David H. Souter.

Justice Clarence Thomas wrote a dissenting opinion, in which he was joined by Chief Justice William H. Rehnquist.

Thomas said Powell’s conviction was proper, and that sending the case back to the Nevada court ″will merely require the needless expenditure of further judicial resources on a claim that lacks merit.″

The case is Powell vs. Nevada, 92-8841.

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