High court asked to halt penalty hearing in murders

Kim Smith

Friday, July 21, 2000 | 11:23 a.m.

Defense attorneys for convicted quadruple murderer Donte Johnson have asked the Nevada Supreme Court to stop next week's penalty hearing, and the American Civil Liberties Union is gearing up to join the fight.

Special Deputy Public Defenders Joe Sciscento and Dayvid Figler say Nevada's three-judge panel system is unconstitutional because of a U.S. Supreme Court decision rendered June 26.

Johnson was convicted June 9 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 District Judge Jeffrey Sobel and two out-of-county judges are supposed to render a decision after rehearing the penalty portion of Johnson's trial.

That hearing is scheduled to begin on Monday, but the defense attorneys, after learning about the decision made in Apprendi vs. New Jersey, asked Sobel last week to rule that the three-judge panel system is unconstitutional.

If Sobel had done so, they then would have asked Sobel to give Johnson life without parole or have another jury determine his sentence.

Sobel, however, denied the attorneys' motion Thursday morning and they immediately faxed a motion to the Nevada Supreme Court asking it to hear the issue.

The Supreme Court could issue a decision as early as today as to whether the hearing should be delayed.

"If I were a legislator I wouldn't have the statutory scheme we have," Sobel said. "I believe the best way to handle a hung jury is to have another jury ... But, I'm neither a legislator nor am I on the Supreme Court."

Sobel said he believes that if the Johnson case or any other like it makes it to the U.S. Supreme Court the three-judge panel system won't survive.

New Jersey resident Charles C. Apprendi Jr. pleaded guilty to possession of a firearm for an unlawful purpose after he fired several shots into the home of a black family in December 1994.

After he pleaded guilty, prosecutors decided to try to get an enhanced sentence by arguing that the crime was the result of racial bias. The judge found that the crime was indeed a hate crime and Apprendi was given 15 to 30 years in prison, double what he would have received otherwise.

Apprendi's attorneys appealed the case and on June 26, the U.S. Supreme Court ruled in their favor. The justices said jurors should be the ones to make any decisions that impact sentences.

Johnson's attorneys say if that is the case, then jurors and not judges should be the ones that decide what, if any, aggravating circumstances exist in the Johnson case. They should also be the ones that decide if those aggravating circumstances outweigh any mitigating circumstances, which they must do in order to render a verdict of death.

Prosecutors Gary Guymon and Robert Daskas say the U.S. Supreme Court has already said judges have the right to decide if aggravating circumstances exist in Walton vs. Arizona.

Figler and JoNell Thomas, an attorney with the ACLU, however, point out that Arizona and Nevada laws are different. In Arizona, every defendant convicted of first-degree murder is eligible for the death penalty and in Nevada, they are only eligible after the aggravating circumstances are found to exist.

If the Nevada Supreme Court finds the issue compelling enough to delay Monday's hearing, the justices will likely ask both sides to submit written briefs, Thomas said.

At that point, Thomas said the ACLU will ask permission to file a Friend of the Court brief in which the organization would outline its reasons for backing the Special Public Defender's Office.

The Nevada Supreme Court could render a decision based on the briefs alone or it could schedule oral arguments.

If the Supreme Court agrees with the defense attorneys, Johnson could get life without parole or he could find himself in front of another jury, Figler said.

If the justices rule against Johnson, the issue could end up before the U.S. Supreme Court.

The issue could end up before the Nevada Supreme Court and the U.S. Supreme Court anyway if the three-judge panel hearing moves forward and Johnson is given the death penalty.