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Defense seeks dismissal of murder charge in trespasser death

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RENO, Nev. (AP) — The lawyer for a 74-year-old Sparks man accused of murder in the death of an unarmed trespasser says her client's mental impairment makes it impossible to try him without violating his constitutional rights and the Americans with Disabilities Act.

Wayne Burgarello's attorney cites the ADA in a new motion to dismiss the charges the retired school teacher faces at a trial scheduled to begin May 18 in Washoe District Court in Reno.

Judge Patrick Flanagan scheduled a hearing Wednesday for an update on Burgarello's latest competency evaluation after learning that he suffered a pair of strokes that caused brain damage.

Defense attorney Theresa Ristenpart said regardless of whether Burgarello is found competent to stand trial, the county can't satisfy ADA rules requiring him to be treated equal to those without mental or physical disabilities.

Nevada requires only that an individual understand the charges against them to be found competent, she said.

"Even if (he's) found to be competent under this analysis, his cognitive disabilities render him unable to meaningfully participate in his own defense by testifying at trial," Ristenpart wrote.

"The prosecution of a disabled person who is unable to defend themselves by testifying on their own behalf is an impermissible violation" of the U.S. Constitution and the ADA, she said.

Burgarello's state of mind is critical to the case, Ristenpart said, because he claims he committed a justifiable homicide in self-defense in February 2014 when he fatally shot Cody Devine and seriously wounded Janai Wilson in a vacant duplex he owns in Sparks.

Chief Deputy District Attorney Bruce Hahn argues Burgarello was acting out of revenge after previous break-ins, arming himself with two handguns before he entered the darkened home and opened fire without provocation.

Hahn has not responded directly to the motion to dismiss but filed a motion Monday to block as irrelevant the admission of testimony from the doctor who examined Burgarello in January.

Dr. Robert Bilder found Burgarello to be "easily confused by complex statements and questions, despite his ability at times to show coherent expression and appreciation of complex concepts," according to the defense filing.

"Tasks that required switching between different forms of information were particularly difficult," Bilder reported.

For example, Burgarello correctly identified the similarity between a carrot and broccoli as being vegetables. But he subsequently answered the "similarity between 'yellow' and 'green' is that they are both vegetables," Bilder reported.

Ristenpart said requiring him to proceed to trial would amount to discrimination based on his disability.

Hahn said in his filing on Monday that Ristenpart is engaged in a "thinly veiled attempt to establish a diminished capacity defense, which is not recognizable in Nevada."

Hahn acknowledged some other states allow defense lawyers to try to establish a "mental defect" that lessens the offender's degree of guilt in cases where insanity cannot be proven. But he cited a 2003 Nevada Supreme Court ruling that concluded "defendants with physical or mental frailties, individuals prone to outburst of temper, or social misfits with hair-trigger personalities spring-loaded to take offense at mild provocation, cannot be permitted under the law to use their personality defects as a license to murder under the guise of self-defense."

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