Mosley disqualified from retrial in overturned murder case

By Matt Pordum (contact)

Wednesday, Sept. 15, 2004 | 9:43 a.m.

District Judge Donald Mosley was disqualified Tuesday from presiding over the retrial of a man convicted in October 2001 of a double murder.

Darion Lee Daniel, 33, was granted a retrial by the Nevada State Supreme Court after the U.S. Supreme Court ruled it unconstitutional for three-judge panels to sentence people to death.

Daniel's attorney, JoNell Thomas, successfully argued Mosley should be disqualified because Mosley sat on the three-judge panel that sentenced Daniel to death.

District Judge Stewart Bell said he granted the motion because "the last thing the public needs is the possibility of trying this (case) a third time" and not because of any concern that Daniel would not receive a fair trial under Mosley.

Bell reasoned that removing Mosley from the case eliminated one possible issue for an appeal. Bell said the trial would be randomly reassigned by the clerk's office.

Bell was initially hesitant in ruling on Mosley's disqualification because as district attorney Bell had overseen parts of Daniel's original case.

"I can't hear any case I've ever touched," Bell said.

Advised of the conflict, Daniel waived the fact, and expressed confidence that Bell would be unbiased in his ruling.

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 a deadly weapon for the January 1997 murders of Fredrick Washington, 24, and Mark Payne, 25.

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.

The nation's high court in 2002 ruled that only a jury could impose the death penalty, a ruling that affected six states including Nevada.

The 2003 Legislature changed Nevada law so that juries, instead of three-judge panels, would decide if the death penalty should be handed down. 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.

There are 14 inmates on death row whose sentences were set by a three-judge panel, the state attorney general's office has said. 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, 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.