On September 18, 2009, the Virginia Supreme Court reversed two death sentences imposed by a Fairfax jury upon Alfredo R. Prieto, citing two errors in the sentencing phase verdict forms utilized by the jury. [LINK TO DECISION]  The Court found that the sentencing phase verdict forms were erroneous because (1) they did not present the jury with an option to sentence Prieto to life without the possibility of parole and/or  a fine of up  to $100,000 even if the jury found  one or both of the aggravating factors beyond a reasonable doubt; and (2) the forms did not require the jury to unanimously find at least one of the aggravating factors to sentence Prieto to death.

As to the first issue, the Court stated that its decisions in Powell and Morrisette control , and require that "the circuit court 'must explicitly provide a verdict form containing the option of life in prison even where the jury finds one or both [aggravating] factors to exist.'"  Regardless of whether the circuit court correctly instructs the jury on this point, the Court held that all available sentencing options must also appear on the sentencing form. 

On the second issue, the Court stressed that sentencing verdict forms must require the jury to unanimously find at least one of the two alternative aggravating factors required to sentence a capital defendant to death.    The Court found that the verdict forms provided to Prieto's jury created "the troubling possibility that six or more of the jurors based their decision on the 'future dangerousness' factor, while the other six or fewer based their decision on the 'vileness' factor."  Acknowledging for the first time that Ring v. Arizona establishes the statutory aggravating factors to be offense elements, the Virginia Supreme Court held that such "mix-and-match" jury findings of disparate elements of a crime would violate due process and the Virginia constitution.  

While remanding the case for resentencing, the Court rejected several challenges to Prieto's capital murder convictions.  The Court also addressed several penalty-phase related issues that might recur on remand, holding that:

• a claim of mental retardation must be adjudicated by the sentencing jury at the same time as all other sentencing issues, rather than determined by either the court or the jury at a preliminary proceeding.  (Virginia is the only death penalty jurisdiction that requires the issue of mental retardation to be deferred to the jury's final sentencing deliberations);
  
  
• a mistrial declared during separate deliberations on the issue of mental retardation did not amount a "deadlock" on the issue of sentence that would have precluded a capital resentencing hearing; and
  
  
• the trial court properly admitted sentencing phase evidence concerning Prieto's prior California convictions that disclosed that he had been sentenced to death in that state for an unrelated murder. 

A Washington Post news story on the Prieto reversal is here.