Two jurors couldn’t vote death for child murderer

By Matt Pordum

Friday, June 10, 2005 | 11:02 a.m.

For two jurors, Beau Maestas' troubled childhood and drug use was enough to convince them death wasn't warranted.

Dom Albacena, 54, explained on the Clark County Courthouse steps Thursday why he and a female member of the jury, named Patricia, couldn't sentence Maestas to death for the fatal stabbing of 3-year-old Kristyanna Cowan and the attack on Brittney Bergeron that left her paralyzed.

Albacena said that although there was "no excuse for his (Maestas) horrible crime" he couldn't vote for death because of Maestas' "upbringing" and the fact "he was on drugs at the time of the incident attacks.

Albacena and the other juror's firm objection to a death sentence left the jury deadlocked and prompted District Judge Donald Mosley to declare a mistrial. Maestas, 21, had pleaded guilty to one count each of murder, attempted murder and burglary, all with use of a deadly weapon for the January 2003 attacks in Mesquite.

Albacena also cited the participation of Monique Maestas, Beau's sister, and Beau Maestas' then-girlfriend Sabrina Bantam as other issues leading to a hesitancy to vote in favor of death.

"I brought up the sister's involvement, but everyone told me we weren't there to judge the sister," Albacena said. "There was no doubt the sister participated in the attack, but to what degree and who did what and how many times she or Beau stabbed the children, it was unclear.

"She (Monique Maestas) did open the door (of the trailer) and the girlfriend (Bantam ) provided the knives. That bothered me."

No trial date has been set for Monique Maestas, who faces the same charges as her brother plus one count of conspiracy to commit murder. She will not face a possible death sentence because of this year's U.S. Supreme Court ruling that people who were younger than 18 when they committed their crimes can't be executed.

Although Bantam provided the knives used in the deadly attack, drove to and away from the crime scene with the Maestas siblings and fled with them to Utah, she has never faced charges.

Roger said after Bantam testified at the penalty phase that no charges were filed against Bantam because she was not a knowing participant in the crimes. Roger had also said the fact that Bantam cooperated fully with the authorities and that her account of what transpired was corroborated by other evidence and the statements of Beau and Monique Maestas.

Albacena said he "feels sorry for Kristyanna and for Brittney who will never walk again," but in the end there were "too many mitigating factors to sentence Beau to death." He said standing his ground was "very hard," but he had to "stand by my beliefs."

Gina White, a general manager for Pizza Hut whose live-in girlfriend has two children ages 12 and 13, said for her there was no other option but death for Maestas due to "just how heinous and sickening the crime was.'

"I mean this was a 3-year-old defenseless child he stabbed in the head," White said. "He could have just hurt them, broken their arms, but he didn't. Nothing that could have happened to him during his childhood could excuse what he did."

White said she and the other jurors in favor of the death penalty reminded the two holdouts of Beau Maestas' police statement in which he said he "could have left (the trailer) and even told detectives he felt he deserved death the penalty.

"Even he thought he should die for his crimes," White said. "The defense did their job though and convinced at least two of the jurors that drugs and his childhood excused his crimes."

White said tensions mounted in the deliberation room when it became clear it might be impossible to break the deadlock.

"One of the jurors said 'I'm tired of playing nice and got loud with the two jurors holding out saying, 'It was a 3-year-old kid that was stabbed in the head.' I wanted to be aggressive and wanted to shake them (the two jurors against death) and do something to make them realize the 10 of us were right."

White said she felt Albacena might have changed his vote if deliberations continued, but she didn't feel the other juror, Patricia "could sentence anyone to death."

"She wouldn't review the evidence," White said.

The jury forewoman, Jessica Johnson, a second semester junior at Vanguard University of Southern California who wants to attend law school, said, "Our initial vote was 6 to 5 in favor of death (with one undecided) and I felt like we were going to be there forever."

Johnson said the next morning the jury voted 7 to 4 in favor of death with one undecided juror.

"They talked about how everyone felt and why they felt the way they did," she said, adding that they began looking at every piece of evidence and going through all of the testimony again.

She said when the jury reached the 10 to 2 vote in favor of death and it became clear no further debate would break the deadlock, she momentarily questioned whether she had what it took to become a lawyer.

"When I had to notify the judge we were deadlocked, I broke down into tears," Johnson said. "I felt bad because I want to be a defense attorney and maybe the deadlock meant I couldn't persuade people. But now I realize it happens and I got a taste and I want more. I can't wait for law school."

Two bailiffs escorted the other jurors from the courthouse to a parking lot about a block away. When asked if they wished to comment, they collectively said no and rushed off to their cars.

For the prosecutors and defense attorneys involved in the case they were thankful for the jurors' service, but not thankful they would have to most likely select a new jury and hold another penalty hearing.

"This was probably one of the most difficult murder cases I've ever tried," District Attorney David Roger said. "I've tried 70 jury trials and 35 of those were murder cases, and this is the most emotionally draining case of all of them.

"We asked the jurors to sit in judgment of this individual, and it was obviously difficult for them." Roger made it clear the mistrial would not serve as the fuel for any negotiations for Beau Maestas.

"We're not going to quit. We will not plea bargain this case," Roger said. "We will keep trying this case until we find a jury that will come to a unanimous decision."

Roger would not speculate on when Mosley would schedule a new penalty phase, but did say no date would be scheduled for Monique Maestas' trial until her brother's fate is determined. The district attorney said no negotiation would be offered to Monique Maestas.

Beau Maestas' attorney, Pete Christiansen, said "Hopefully the judge will choose life without (parole)." Christiansen was speaking to the fact that under Nevada law Mosley had the option to order a new penalty hearing or sentence Maestas to a term with life in prison without parole. Mosley has set a July 7 status check to determine the next action in the case. The defense attorney said he was "thankful the jury spent the time and related energy trying to reach a decision.'

"They are very nice, hard-working people and they had a heck of a week." Christiansen said it "was too soon" to discuss what if anything he would do differently when the new penalty hearing begins.

In a moment of chilling irony the victims' mother, Tamara Schmidt, who arrived at her trailer to find her little girls slaughtered only minutes after Maestas left, showed up to court minutes after Mosley had declared the mistrial.

Upon hearing of Mosley's decision, Schmidt would not comment as she was rushed out of the courthouse on the arm of her attorney, Steve Caruso.

Caruso said, "I'm disappointed, but the simple truth is that in the state of Nevada even a filthy murderer deserves a fair day in court, and that's what he got before Judge Mosley."

"She's (Schmidt) physically ill, her thoughts are for Brittney," Caruso said. "She's devastated because she knows how this will affect Brittney. She asked me, 'What will Brittney do now?'"

Tamara and Robert Schmidt are facing charges of child abuse and neglect in connection with the stabbing attack. They are scheduled to stand trial on July 25.

Brittney continues to live with a foster family. Because of a ruling by Family Court Judge Gerald Hardcastle, Schmidt's parental rights have not been terminated and she is to have increased visitation with Brittney and undergo family counseling.

Brittney recently received a $5.5 million settlement from the owners of the CasaBlanca Resort RV park where the attack occurred.