Death penalty reversed in skinhead killing

Tuesday, Dec. 21, 2004 | 8:49 a.m.

CARSON CITY -- John Butler, sentenced to death for the shotgun murder of two rival gang members in Clark County, is going to get a new penalty hearing.

The Nevada Supreme Court Monday upheld the conviction of Butler on two counts of first-degree murder in the desert slaying of Linn Newborn and Daniel Shersty in July 1998.

Butler, according to court records, was an "influential member of a white supremacist gang called the Independent Nazi Skinheads." The victims were members of the nonracist gang known as Skinheads against Racial Prejudice.

The court, in a majority decision written by Chief Justice Miriam Shearing, said there were three errors committed during the penalty hearing and the death penalty is overturned.

Justice Mark Gibbons dissented, saying the errors were harmless and the new penalty hearing will "require the families of Butler's victims to relive the gruesome and premeditated deaths of their loved ones."

Police identified both groups as violent skinhead gangs.

The Supreme Court agreed with attorneys for Butler that former District Judge Michael Douglas, now on the Supreme Court, should have permitted both of Butler's lawyers to argue at the penalty hearing. Douglas, who did not participate in the decision, had permitted only one defense lawyer to argue at the penalty hearing.

The court said Douglas also gave an erroneous instruction to the jury because it failed to describe what evidence could be considered in reaching the sentencing decision. The instruction permitted jurors to consider evidence that Butler had been arrested 32 times in the past.

The majority opinion said the prosecution made improper remarks in its statements calling the medical experts for the defense "high falootin" and also referred to them as "pseudo experts." It also said the prosecution improperly implied that defense lawyers are deceptive.

Shearing, with Justices Bob Rose and Nancy Becker, said "although overwhelming evidence supports Butler's two convictions, he was entitled to a hearing that was fair before the jury decided to impose a penalty of death." They said, "we conclude that the cumulative impact of these errors deprived Butler of a fair hearing."

Justice Deborah Agosti and Bill Maupin disagreed with the majority that the prosecutor's remarks to the jury were prejudicial. But they said they still agreed that Butler deserved a new penalty hearing based on the other errors.

Gibbons, in his dissent, said, "In this case, the state presented overwhelming evidence to support the aggravator for the death penalty. During the sentencing phase, the evidence showed that Butler had been arrested or cited 32 times for various criminal offenses."

Gibbons said Butler ambushed the two victims shooting them both numerous times at close range. He said the defense lawyers never objected during the arguments of the prosecution to disregard improper statements.