Judge rejects recusal request

Tuesday, April 12, 2005 | 9:15 a.m.

The judge set to preside over the new penalty hearing for a man who was originally sentenced to death for the 1998 execution-style killings of four young men has decided not to recuse himself from the case over a potential conflict of interest involving the judge's law clerk.

Chief Deputy District Attorney Robert Daskas on Friday filed an emergency motion asking the Nevada Supreme Court to rule on whether District Judge Lee Gates should be prohibited from handling Donte Johnson's re-sentencing.

The reason: Gates' law clerk, Nancy Bernstein, was previously an intern in the district attorney's office and worked on part of the prosecution's case against Johnson.

On April 4, Daskas had asked Gates to recuse himself from the new penalty phase scheduled to start April 19.

Gates took the issue under advisement, and on April 7 announced that he had decided not to recuse himself from the case.

That prompted Daskas to seek a ruling from the state's highest court.

Johnson has stipulated he would not raise the issue in any future appeals he files after his new penalty phase, but he could technically still raise the issue as part of an ineffective counsel claim.

He could argue his attorneys were ineffective in advising him that no conflict of interest existed to require Gates to recuse himself.

The Nevada Supreme Court ordered a new penalty phase for Johnson after the U.S. Supreme Court ruled that only a jury could impose the death penalty. A three-judge panel had sentenced Johnson to death after the original jury could not agree on the penalty.

Johnson was sentenced to death row by the three-judge panel for the murders of Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringe, 20, and Peter Talamantez, 20. They were killed in August 1998 in a house they had rented on Terra Linda Avenue in southeastern Las Vegas.

Johnson was aided in the killings by 24-year-old Terrell Cochise Young and 23-year-old Sikia Smith. Young and Smith were both sentenced to life in prison for the shootings.

The Nevada Supreme Court, however, ordered a new trial for Young, saying District Judge Joseph Pavlikowski failed to addresses Young's contention that there was animosity and a lack of communication between the accused killer and his court-appointed lawyer Lew Wolfbrandt at the 1999 trial.

Young made several motions to replace Wolfbrandt, but they were denied by Pavlikowski. Young complained that Wolfbrandt failed to see him in jail for eight months.

Young's new trial is scheduled before District Judge Nancy Saitta on Sept. 12.