LV case could set execution precedent

Monday, Nov. 11, 2002 | 11:04 a.m.

CARSON CITY -- An appeal by a Las Vegas killer to the Nevada Supreme Court could change the way the state hands out the death penalty.

The U.S. Supreme Court ruled earlier this year that certain capital punishment sentences are unconstitutional. The ruling involved cases in which the judge, not a jury, decided the death penalty.

The court will hear arguments Tuesday in the case of Donte Johnson, convicted of the 1998 execution-style slaying of four young men in Las Vegas.

The state court's ruling in Johnson's case will set the precedent for how similar judge-issued death sentences will be dealt with, said JoNell Thomas, a Las Vegas criminal defense lawyer and board member of the Nevada chapter of the American Civil Liberties Union, which opposes the death penalty.

The court could rule such decisions must be made by a jury, as the U.S. Supreme Court ruled, which would mean a new jury should be assigned in cases where the original jury cannot reach a decision, Thomas said.

Or the court could uphold current Nevada law, which says a three-judge panel takes over when there is a hung jury, she said. But Thomas said if the state court ruled in favor of using the panel, the case would probably go to the federal courts.

A hearing on the Johnson case had been set for June but was delayed when the U.S. Supreme Court handed down its decision in an Arizona case. Defense and prosecution attorneys were given additional time to submit new briefs on whether the U.S. Supreme Court ruling could invalidate Nevada's three-judge panel in capital punishment cases.

Clark County Deputy Special Public Defender Dayvid Figler said the decision by the U.S. Supreme Court "throws into serious doubt the continued propriety of Nevada's three-judge panel sentencing scheme."

Figler, in a prehearing brief, said the U.S. Supreme Court has determined juries, not judges, are the only proper body to evaluate the existence of factors that expose a person convicted of first-degree murder to a death sentence.

But Lynn Robinson, chief deputy district attorney of Clark County, said the Arizona law that was overturned by the U.S. Supreme Court was different from Nevada's.

The aggravating circumstances found by the judge's panel to merit the death penalty for Johnson were the same circumstances found by the jury when it convicted him, she said. The jury just could not reach a decision on the penalty.

Robinson said the sentencing imposed by the judges reflected the jury's guilty verdict. She said the aggravating circumstances were found by the jury, then used by the three-judge panel.

Johnson was found guilty of killing Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringe, 20 and Peter Talamantez 20. Two others, Sikia Smith and Terrell Young, were convicted of murder and received life sentences.

But the jury was unable to reach a verdict on whether Johnson should receive life or be sentenced to death.

A three-judge panel consisting of District Judges Jeffrey Sobel, Mike Griffin of Carson City and Steve Elliott of Reno was convened to replace the jury. It ruled the aggravating circumstances outweighed the mitigating circumstances and sentenced Johnson to death.

A three-judge panel is used when a District Court jury cannot reach the penalty in a capital murder case. It is also appointed by the Nevada Supreme Court when a person pleads guilty to first-degree murder.

Figler said the Nevada Supreme Court "must rule the three-judge panel is unconstitutional."

Thomas agreed.

"The U.S. Supreme Court was very clear," she said. "Sentencing needs to be done by a jury not judges."

But Robinson said in this case, the sentencing by the three-judge panel "directly reflects the (aggravating) facts found by the jury beyond a reasonable doubt."

The state court will take the arguments under submission Tuesday and will rule later.