Washoe asks that stay of execution be lifted on convicted murderer who asked to drop appeals

The Washoe County District Attorney's Office has asked the Nevada Supreme Court to lift the stay preventing the execution of convicted murderer Daryl Mack.

Mack, who is on death row, asked that all his appeals be dropped and that he be killed. But federal public defender Michael Pescetta filed a petition on behalf of Mack's mother, Viola Mack, challenging the district court decision dismissing his post-conviction petition and ruling him competent to cancel all his appeals.

Pescetta's petition argues Mack was not competent to assist his lawyers, that he was hearing voices and being forced to take Haldol, a powerful psychiatric medication, at the time of that hearing. He said using that drug to make Mack appear competent violates his rights.

He was already serving life for a murder in 1994 when DNA evidence linked him to a 1998 killing.

The Supreme Court in November stayed Mack's Dec. 1 execution and ordered the state to address all the issues raised and "particularly whether the appointed experts were adequately examined and subjected to the adversarial process in the proceedings."

The high court also asked the state to report on why the one doctor who said Mack was not competent didn't appear and testify before the district court.

Washoe County Chief Appellate Deputy Gary Hatlestad challenged Mrs. Mack's standing to ask for relief in the case even though she is the defendant's mother.

Until the petition, he argued, she had shown little interest in the case and has no personal knowledge of his current mental state.

"For all intents and purposes, it is not Mrs. Mack who seeks next friend status but rather Mr. Pescetta," he wrote in his answering brief.

Hatlestad also argued the competency hearing was adequate and met the requirements of law. He argued two other psychiatric experts did testify and said he was competent.

"In short the hearing conducted in the trial court was legally adequate," he said.

Finally, he argued the Haldol was prescribed to "enable him to deal with his angst" and there has been no evidence the medication was prescribed in error.

"The record supports the legally relevant finding that Mr. Mack knew and understood he was about to be executed, why he was about to be executed , that he had a right to challenge his conviction and sentence, and that Mack's decision to waive further litigation was not the product of a mental disease or defect," he said.

Hatlestad urged the court to deny further relief in the case.

n Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.


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