Three-judge panel comes under fire

Kim Smith

Wednesday, July 12, 2000 | 10:33 a.m.

A defense attorney for quadruple murderer Donte Johnson has filed a 33-page motion challenging the constitutionality of the three-judge panel system that holds Johnson's fate in its hands.

If he is unable to convince District Judge Jeffrey Sobel Thursday that Johnson deserves a new trial, Deputy Special Public Defender Dayvid Figler believes his client should be sentenced by a jury or automatically given life in prison without the possibility of parole.

Johnson was convicted last month in the slayings of four young men in a residential robbery. Because jurors were unable to reach a unanimous decision as to whether Johnson deserved the death penalty, a three-judge panel made up of Sobel and two out-of-town judges will re-hear the penalty portion of his trial and render a sentence later this month.

Figler is arguing for a new trial Thursday because he believes two jurors watched TV coverage of the trial, which is forbidden.

Figler's latest motion, which prosecutors must respond to by Friday, gives a number of reasons why the three-judge panel system should be abolished.

He argues that the Constitution requires jurors, not judges, to determine if aggravating circumstances in a case outweigh mitigating circumstances. It is when the aggravators outweigh the mitigators that death is generally imposed.

Figler also believes that the Nevada Constitution doesn't say anything about a hybrid three-judge District Court. Nor does it say the Legislature can create one.

The defense attorney attacks the system, too, because he says there is no way for attorneys to question panel judges about any biases and attitudes they might have.

In one case, a three-judge panel gave the death penalty to a man convicted of killing two people by inflicting head wounds. Figler said it was later revealed that one of the judges was a close friend of a woman who had once been shot in the head.

"This situation would clearly justify excusal ... of a juror, or at minimum, a searching inquiry into the juror's capacity to be impartial," Figler writes in his motion.

The Nevada Supreme Court has also kept secret the way panel members are selected, and statistics show that they probably aren't picked randomly, Figler said.

Ninety percent of defendants who go before a three-judge panel get the death penalty, Figler said.

"This extreme rate of death sentencing is even more striking because the three-judge jury may impose a sentence less than death by a majority vote, a power, which a sentencing jury does not have," Figler writes.

Figler said the law also requires sentences to reflect the "conscience of the community." He questions how that can be done when two of the three judges in Clark County cases are from other communities.

The defense attorney believes that if Sobel isn't willing to empanel a new jury or give Johnson a no-parole life sentence himself, he should order the clerk of the Nevada Supreme Court to give him certain information.

Figler wants to know how the judges are selected, what criteria are used, and which judges were contacted in the Johnson case.

Figler also would like Sobel and the two other judges on the Johnson case to answer a series of questions. He wants to know if they've ever been disciplined or investigated by the Judicial Discipline Commission, the attorney general or a law enforcement agency.

He also would like to know if they've ever told anyone their opinion about the Johnson case; if they are a member of a racially-exclusive club or if they've ever used derogatory language about a minority or minority group.

Also included on Figler's list of questions: whether a panel member has ever said that the money used on capital cases is excessive or a waste; if they have any relationships with prosecutors or witnesses that might appear to be improper and if they have any links to the victims or any victims advocacy groups.

Johnson's hearing is scheduled to begin July 24.