Judge rejects arguments against death-penalty panels

Kim Smith

Tuesday, Oct. 2, 2001 | 8:48 a.m.

The fate of a Las Vegas man convicted in a double murder in August will be determined by a panel of three judges.

Darion Daniel's defense attorneys Monday morning failed to convince District Judge Donald Mosley that such a panel is unconstitutional.

Daniel,30, was convicted on two counts of first-degree murder in August, but the jury could not decide whether he should be executed. As a result, a three-judge panel will decide whether Daniel should be given a life sentence with or without parole, or whether he will be executed by lethal injection.

Defense attorney JoNell Thomas argued Monday that Nevada's statute pertaining to three-judge panels is unconstitutional. Although defendants who have had their sentences overturned are re-sentenced by jurors, defendants facing juries that can't reach a unanimous decision on sentences will then face a panel of judges.

In addition, Thomas said a June 2000 U.S. Supreme Court decision clearly states that a jury -- and not judges -- must decide the veracity of allegations made during the sentencing phase of a trial.

Thomas said that as a result of Apprendi vs. New Jersey, jurors and not judges should decide what, if any, aggravating circumstances exist in the Daniel case. They should also decide if those aggravating circumstances outweigh any mitigating circumstances, which they must do to render a verdict of death.

Thomas also argued that none of the jurors in the Daniel case voted for death. And, for Daniel to face a possible death sentence now violates the double jeopardy clause of the Fifth Amendment.

Chief Deputy District Attorney Robert Daskas said the Nevada Supreme Court has upheld the constitutionality of three-judge panels.

The prosecutor also said Thomas was mistaken about the jury's final vote. In speaking with them, Daskas said some voted for death and for a no-parole life term, and one voted for life with the possibility of parole.

Mosley said that though Thomas' arguments were interesting and logical, he did not believe he was in a position to consider them.

Mosley, Bill Maddox of Storey County and Robert Estes of Lyon County began hearing evidence Monday afternoon.

Prosecutors alleged Daniel, 30, walked into a downtown apartment in January 1997 and opened fire on the occupants as they watched television. Fred Washington, 24, and Mark Payne, 25, were killed.