Haberstroh was convicted of murder and sentenced to death. The Nevada Supreme Court held that one of the jury instructions--regarded what constituted an aggravating factor--was improper.

The critical question was whether that argument was prejudicial--whether the result might be different if the defendant were remanded for a new sentencing hearing.

The court held the error was prejudicial. It observed that, if the defendant were resentenced, his attorney could offer mitigating evidence. 69 P. 2d at 684. Haberstroh's original trial attorney had failed to offer any such evidence. The court noted that the mitigating evidence which had not been offered at the original sentencing hearing, but which presumably would be offered at a new hearing, included

69 P. 3d at 683 n. 22. Haberstroh had complained that he had been denied the effective assistance of counsel when his original attorney did not offer that evidence; the appellate court did not resolve that issue.

This case is important because it recognizes the substantial possible impact of FAS at sentencing, and provides support for an argument that the failure to develop such evidence would be prejudicial.