Tuesday, June 25, 2002 | 11:10 a.m.
CARSON CITY -- An appeal that challenges Nevada's use of the death penalty has been postponed while the lawyers involved study a U.S. Supreme Court ruling Monday that says juries, not judges, should decide when a death sentence is appropriate.
A hearing in the case of Donte Johnson, convicted of the 1998 execution-style slaying of four young men, had been scheduled for Wednesday before the state Supreme Court to allow Special Public Defender Dayvid Figler to argue that Johnson's sentence was unconstitutional. That hearing was rescheduled until fall.
"Realistically, Donte Johnson will be the test case," Chief Deputy Public Defender Curtis Brown said.
The jury that found Johnson guilty later deadlocked in trying to decide whether he should get the death penalty or a life sentence. A three-judge panel sentenced Johnson to death.
Johnson was found guilty of killing Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringe, 20 and Peter Talamantez, 20, all who were bound and shot in the back of the head.
Two other men -- Terrell Young and Sikia Smith -- were convicted in the slayings and sentenced to prison without the possibility of parole.
Figler has maintained that the three-judge panel that sentenced Johnson is unconstitutional, a position he said Monday the U.S. Supreme Court ruling confirmed.
"This ruling is so strong and so clear that the three-judge panel is now a thing of the past in Nevada," he said.
"We go from a position of convincing them (the Nevada Supreme Court justices) of how to apply the law to convincing them to enforce the law," he said. "The district attorney's office has to find a new argument because of the Supreme Court's decision."
Prosecutors in the case could not be reached this morning for comment.
However, other Nevada legal experts say the impact of the federal ruling on Nevada remains to be decided. They said the Johnson case likely will be the first heard and may set a precedent for cases that follow.
"Nothing is going to happen automatically," state Public Defender Steve McGuire said this morning. "It will be a case-by-case decision by the courts."
Nevada was not among the five states the high court noted were wrong in their use of the death penalty.
In those states -- Arizona, Montana, Idaho, Colorado and Nebraska -- judges always make decisions on the death penalty.
The difference in Nevada is that judges decide on the death penalty only when juries cannot or a jury is waived.
Seventeen Nevada death row inmates were sentenced by three-judge panels. Eleven waived juries. Six were convicted at trial but the juries were hung on the penalty phase, according to Deputy Federal Public Defender Michael Pescetta, who has researched the issue.
To give a death sentence, juries must find aggravating circumstances that can override the mitigating circumstances.
Pescetta said that many of the six hung juries had met this requirement but could not decide on a sentence.
Brown, who spent most of Monday reading the opinion, said the ruling wasn't clear about whether juries had to hand down the sentence or merely find aggravating circumstances.
Brown suspects that the majority of the cases affected will be from seven to eight years ago, when more defendants pleaded guilty to murder and took their chances before the three-judge panel. He said lawyers stopped recommending this path to their clients after the majority of the panels gave the death penalty.
Judge panels rule "between 70 and 80 percent of the time for death," Pescetta said.
Besides Johnson, the 11 Nevada death row inmates from Clark County may be affected by Monday's ruling. They are:
Other men sentenced to death in Clark County by three-judge panels were Dorian Daniel, Frederucj Oaube and Timothy Redman.
Librarian Rebecca Bagayas contributed to this story.
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