An attorney for Peter Bergna urged a judge to free his client on bail Tuesday while the state Supreme Court considers Bergna's appeal of his conviction for killing his wife.
The prosecution contended there's no provision in Nevada law that allows for release of a person convicted of first-degree murder and no assurance Bergna wouldn't flee if he were freed.
"Mr. Bergna has no right to bail," Chief Deputy District Attorney David Clifton argued.
Bergna's lawyer Richard Cornell agreed that the law is vague, but said that in such cases, "any ambiguities are construed in favor of the defendant."
"The judge should grant bail," he said outside the courtroom.
The law says a judge has the prerogative to grant bail before a defendant goes to trial unless the death penalty is involved, but is silent about a convicted murderer who could be paroled.
Washoe District Judge Brent Adams agreed that the law is vague and took Cornell's motion under consideration.
Bergna was convicted in June 2002 and sentenced to life in prison with the possibility of parole for a 1998 crash that killed his wife, 49-year-old Rinette-Riella Bergna.
Prosecutors say he staged the wreck and jumped free of his Ford pickup before his wife crashed some 700 feet to her death near the Mount Rose Ski Resort southwest of Reno near Lake Tahoe.
Bergna, a former Incline Village art appraiser, claimed the truck's brakes failed. He telephoned 911 from the side of the cliff with a cell phone he had in his pocket.
His first trial in November 2001 ended with jurors deadlocked 9-3 in favor of conviction.
Before he was sentenced last year, Bergna's defense lawyers sought to have the verdict thrown out, alleging juror misconduct during the six-week trial. Adams rejected the motion.
Bergna did not appear in court Tuesday.
"He wouldn't have anything to say," Cornell said after the court adjourned.
Bergna has been transferred to the medium security prison in Lovelock after four months in the maximum security facility in Ely and did not want to risk having to be reprocessed through Ely, Cornell said.
Cornell said in court that the key issue was whether Adams had the legal jurisdiction to rule because Bergna was neither a danger to the community nor a flight risk.
When he was released on bail before his retrial, Cornell said his client went beyond meeting his bail restrictions.
"Mr. Bergna is that kind of individual," he said.
If the Supreme Court ruling went against him, Bergna would return to Lovelock, Cornell said. If he prevailed, he would be back in District Court. But if he fled, he would face a long stretch in Ely.
In addition, he said his client has filed for bankruptcy protection and has no money with which to flee.
Clifton argued that it appeared the Supreme Court would reach a decision fairly quickly and setting Bergna free wasn't worth the risk, especially if the high court rules against him.
"Why take a chance?" he asked. "Do we trust him to go back to Ely or Lovelock and turn himself in?"
Cornell said outside court he wasn't aware of any other instance in which a motion for bail had been filed in a first-degree murder conviction.
"This is such a bizarre case," he said.