New judge asked for retrial of 1997 murder case

By Matt Pordum (contact)

Tuesday, June 22, 2004 | 9:43 a.m.

District Courts in Las Vegas are continuing to deal with the aftermath of the U.S. Supreme Court decision that is forcing retrials and resentencings of people who had been sent to death row by three-judge panels.

The nation's highest court ruled in 2002 that only juries could sentence people to death.

On Monday, 33-year-old Darion Lee Daniel requested District Judge Donald Mosley be disqualified from Daniel's re-trial for a double-murder because Mosley had been one of the three judges who sentenced him to death.

Daniel faces two counts of murder in the first-degree with use of a deadly weapon and two counts of attempted murder with use of deadly weapon for the January 1997 killings of Fredrick Washington, 24, and Mark Payne, 25.

Mosley has two days to respond to the request.

A different District Court judge, presumably Chief Judge Cathy Hardcastle, would rule on the request to disqualify Mosley, determining whether substantial grounds existed for the judge's dismissal from the case, according to Deputy District Attorney Robert Daskas.

A retrial date for Daniel cannot be scheduled until the matter of who would preside over his re-trial is resolved.

Daniel's lawyer, JoNell Thomas, has also requested Mosley be disqualified because Mosley was wrong to take a prosecution witness into his chambers and talk to him in private after the witness refused to testify against Daniel.

The Nevada State Supreme Court already ruled it was improper for Mosley to have brought the witness into his chambers for the private hearing, but Thomas said the relief for that improper act was never addressed.

Thomas said she has not found a Nevada case that had to deal with this question of relief, and although she found some cases nationally, none of them dealt with it in the realms of a retrial.

Thomas said the motion to disqualify Mosley "doesn't mean he's (Mosley) is biased."

"I think any client that has been sentenced to death by a judge would want a different judge to preside over their re-trial," Thomas said.

Daniel was the only man sentenced to death in Nevada in 2001. He was sentenced to death by a panel of three judges after a jury couldn't agree on his punishment.

After the U.S. Supreme Court ruling that only juries could impose death penalties, the 2003 Legislature changed Nevada law so that juries, instead of three-judge panels, would mete out capital punishment. And if juries could not reach a unanimous decision, the judge who presided over the case would sentence the defendant to life without the possibility of parole.

The state attorney general's office has said there are 14 inmates on death row whose sentences were set by a three-judge panel. It remains unclear as to how many of them are affected by the high court's ruling, because the court failed to indicate if the ruling was retroactive.

Since the Legislature's action, however, the Nevada Supreme Court has ordered new penalty phase hearings for Daniel and Donte Johnson.

A three-judge panel sentenced Johnson to death for the 1998 execution-style killings of four young men after a jury could not agree on the penalty. Johnson's new penalty phase is scheduled for Oct. 18 before District Judge Lee Gates.

Additionally, the Nevada Supreme Court decided the case of Lawrence Colwell, and held that the U.S. Supreme Court's decision did not apply to his case because Colwell waived his right to a jury trial when he pleaded guilty.