14 state death penalty cases wait on Supreme Court

Tuesday, Dec. 2, 2003 | 9:28 a.m.

CARSON CITY -- A pending U.S. Supreme Court ruling on capital punishment could affect 14 men on Nevada's death row, an expert on appeals in death penalty cases said.

The U.S. Supreme Court decided Monday it would attempt to clear up confusion over its previous ruling that juries, not judges, must decide if a person is sentenced to death. At issue is whether the ruling was retroactive.

Federal Public Defender Michael Pescetta cited the cases of 10 men in Nevada who pleaded guilty and were sentenced to death by three-judge panels and four cases in which there was a hung jury and a three-judge panel was called to decide the punishment. The panel handed down the death penalty in those four cases.

If the U.S. Supreme Court decides that its initial ruling was not retroactive, then the 14 capital punishment cases in Nevada would not be overturned on that issue, Pescetta said.

But if the Supreme Court decides the ruling is retroactive, Pescetta said, the 14 cases would not be automatically overturned. He said there would have to be court hearings to determine if these individuals waived their rights to a jury hearing in the penalty phase of the case.

There are 84 men and one woman on death row in Nevada.

Since the first ruling of the U.S. Supreme Court, the Nevada Supreme Court said there would not be any retroactive application to those death penalty cases being processed through a writ of habeas corpus.

The Nevada court ruled the retroactive ruling would apply to those cases that were on their first appeal.

Since the U.S. Supreme Court ruling, the Nevada court has ruled on three death penalty cases in which judges ordered the executions of defendants. The Nevada court overturned two of the convictions and sent them back for new penalty hearings and upheld the other sentence, Pescetta said.

The court ordered a new penalty hearing for Donte Johnson, convicted of the 1998 executive-style slaying of four young men in Las Vegas. The jury had been unable to decide whether to hand down the death penalty. A three-judge panel sentenced Johnson to death.

The Nevada Court also overturned the death sentence of Dorion Daniel, convicted of the fatal shooting of two men and the wounding of two others in a Las Vegas apartment in July 1997. The jury also deadlocked on the penalty in this case and a three-judge panel was convened. The judges imposed the death penalty.

In both cases, there are still many issues to litigate before the new penalty hearings are scheduled before a District Court jury, Pescetta said.

The Nevada Supreme Court upheld the death penalty imposed on Daryl L. Mack for the 1988 killing of a Reno woman. Mack waived his right to a jury trial, was convicted and a three-judge panel imposed the death penalty.

The Nevada court ruled that Mack had waived his right to a jury trial and thus waived his right to a sentencing hearing by the jury.

Pescetta, who said the Mack case would probably be appealed further, said the decision of the Nevada court was "problematic."

After the ruling by the U.S. Supreme Court, the 2003 Legislature changed the law so that juries would decide the death penalty.