McKenna v. State — a Nevada capital appeal, examined

The original conviction was reversed by the Nevada Supreme Court in McKenna v. State, 98 Nev. 38, 639 P.2d 557 (1982). A reversal in a capital case does not end the matter; it resets it. The State retried Patrick McKenna, again capitally, and the retrial produced a second conviction and a death sentence.

Two reported opinions in the same prosecution, three years apart, bracket the retrial and give the case its documentary shape: the 1982 reversal marks what the reviewing court found wanting in the first proceeding, and the 1985 affirmance records the second trial that had to withstand the same scrutiny. Between them sits the proceeding this analysis centers on — the capital retrial in which Mr. McKenna served as trial counsel.

On the second appeal, the Nevada Supreme Court affirmed the conviction and the death sentence. McKenna v. State, 705 P.2d 614 (Nev. 1985). That opinion is the doctrinal artifact this article examines: a capital affirmance that documents the court’s engagement with the constitutional framework governing how a Nevada jury may be selected, what evidence a capital defendant may present, how the jury may be instructed, and how the resulting sentence is reviewed.

One boundary of the record should be stated plainly, because precision about roles is part of the discipline of writing about this case: Kenneth J. McKenna served as trial counsel in the capital retrial. The appeal itself was handled by the public defender. The analysis that follows concerns an appellate opinion, but the record under review in that opinion was a trial record — the one built in the retrial.

Kenneth J. McKenna stepped into a multi-decade capital matter as trial counsel for the retrial, representing his own brother against virtually the entire prosecutorial apparatus of the State of Nevada. The related federal habeas proceeding, McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995), describes that during the capital retrial Mr. McKenna was left for three days as the sole attorney for the defense.

That detail, preserved in a Ninth Circuit opinion a decade later, says something concrete about what capital trial work demands. A capital retrial is two trials in one — a guilt phase and a penalty phase — each with its own evidentiary record, its own objections to make and preserve, and its own body of constitutional doctrine bearing on every ruling. Carrying that alone, for any stretch of a capital trial, is the deep end of criminal defense practice.

A retrial also has its own tactical geometry. The State proceeds with the benefit of having tried the case once already; the defense must contend with a prosecution that has seen its own case tested. Undertaking that defense capitally — where a second conviction again carries a death sentence — compounds the weight of every trial-level decision.

The 1985 appeal engaged the interlocking doctrines that structure every American capital case. As documented in the record of the case, the framework included:

These four doctrines are usually taught separately, but in a live capital trial they operate as one system, and each one runs through the trial record. Death qualification determines who sits on the jury before any evidence is heard; an error there infects both phases. Mitigation admissibility determines what the penalty-phase jury is permitted to weigh. Instruction questions — including what the jury is told about executive clemency — determine the lens through which that evidence is viewed. And proportionality review under NRS 177.055(2)(d) asks the appellate court to evaluate the sentence on the record the trial produced.

The consequence is that a capital appeal is only as strong as the trial that precedes it. Voir dire objections under Witherspoon and Witt must be made contemporaneously, juror by juror. Mitigating evidence must actually be offered — and excluded on the record — before its exclusion can be reviewed. Instructional error must be preserved when the instructions are settled. Even the statutory proportionality review operates on the facts and sentencing record the trial developed. None of this can be manufactured on appeal.

Proportionality review deserves separate mention because it is the distinctly Nevada element of the framework as this case engaged it. Under NRS 177.055(2)(d), the death sentence itself was subject to proportionality review by the Nevada Supreme Court on the record of the case. For trial counsel, that meant the sentencing record was being built for a statutory reviewer as well as for the jury in the room — one more respect in which the trial record was the whole game.

The 1985 opinion is among Nevada’s capital precedents addressing the Eighth Amendment framework governing capital proceedings, and the appeal documents substantive engagement with each of the doctrines above. Whatever one’s view of the outcome — the court affirmed — the opinion stands as a record that the constitutional machinery of a Nevada capital case was put through its full operation, at trial and then on review.

For a lawyer evaluating criminal-defense counsel, McKenna v. State is instructive precisely because the affirmance ran through issues that only exist if trial counsel put them there. Death-qualification challenges, mitigation proffers, instructional objections, the sentencing record that proportionality review examines — every one of those appellate issues is a trace of decisions made in real time at trial, under the pressure of a capital proceeding, in a retrial where the State had already secured one conviction. Record-building is not a byproduct of capital trial work; it is the work.

The case also illustrates the long arc of capital litigation. The matter ran from a 1979 death at the Clark County Jail through a 1982 reversal, a retrial, a 1985 affirmance, and a related federal habeas proceeding decided by the Ninth Circuit in 1995. Capital defense is practiced on that timescale, and the trial record made in a single courtroom season is litigated over for decades.

Nevada has since built a formal structure around exactly this reality. The state’s modern framework for capital-defense practice is examined in this site’s companion reference on SCR 250 and the capital-defense process in Nevada (/articles/scr-250-capital-defense-process-nevada), which describes how Nevada now regulates the staffing and conduct of capital cases. Read together, the two pieces make the same point from opposite directions: the rule exists because capital trials demand what McKenna v. State shows — counsel able to run the full constitutional framework at trial, where the record is made. An attorney weighing a serious Nevada criminal matter is ultimately weighing that capacity.