Judge clears court to probe jurors

Thursday, May 5, 2005 | 10:58 a.m.

District Judge Gates on Wednesday finally took up Monday's discovery of an apparently used crack pipe in his courtroom's jury box, but he did so in a extremely unusual and possibly unprecedented way.

Gates had his bailiff clear the courtroom gallery and lock the doors, leaving only the judge, his bailiff, a court reporter, two defense attorneys, two prosecutors and convicted quadruple murderer Donte Johnson in the courtroom.

Roughly 30 minutes later the bailiff emerged and escorted the jury into the courtroom, but once again locked the doors and wouldn't allow anyone else inside.

Clark County District Attorney David Roger said in his over 20 years plus practicing law in the county he has never heard of a judge holding a closed hearing with a jury present.

The U.S. Supreme Court has firmly held that the press and the public have a constitutional right to attend criminal trials and pretrial proceedings and may not be excluded unless the court makes findings on the record that closure is required to preserve higher values and is narrowly tailored to serve those values.

JoNell Thomas, general counsel for the Nevada Press Association, said that at the very least Gates should have provided the press and the public an opportunity to protest the closing of the court prior to the closure.

During such a hearing the court would have to weigh the public's right to know against the rights of a defendant or witness.

"The public has a right to know why a crack pipe was found in the courtroom and whether or not it belonged to a juror," Thomas said.

"That right needs to be weighed against other issues. One issue could be whether a juror would be more forthcoming outside the presence of the media and the public as to whether or not the crack pipe belonged to them."

A source who asked to remain anonymous said Gates showed the 12 jurors and two alternates the broken glass pipe and asked them if it belonged to any of them.

The jurors told Gates the pipe didn't belong to any of them.

After the closed hearing, the courtroom was opened and closing arguments in Johnson's new penalty phase were heard.

Gates didn't address what took place behind the locked doors of his courtroom, and after the jury began deliberations he said he wouldn't comment on the incident until after a verdict was returned.

Acting Chief Judge Michael Cherry said he "hadn't had a chance to speak with Judge Gates (about the closed-door hearing), so I don't think it would be appropriate to talk about anything while the trial is continuing and the jury is deliberating."

Gates has not yet had his bailiff file an incident report on the crack pipe discovery.

On Tuesday evening Court Administrator Chuck Short said that Gates had told his bailiff "to focus on the trial and to write an incident report tomorrow afternoon."

As of 8:00 p.m. on Wednesday no such report had been filed, officials said.

Sources said a juror first informed Gates' bailiff they found the crack pipe on Monday morning. The broken glass pipe was "charred and contained what appeared to be a white flaky substance," according to sources.

Sources said that in a subsequent closed hearing outside of Gates' courtroom after the pipe was found on Monday, Gates' bailiff said all of the jurors in the case denied that the pipe belonged to them. The bailiff also reportedly said none of the jurors appeared to be impaired or under the influence of an illegal substance.

It remains unclear what the find could mean in the case of Donte Johnson, who faces the possibility of the death penalty for the August 1998 murders of Tracey Gorringe, 20, Peter Talamantez, 17, and Matthew Mowen and Jeffrey Biddle, both 19.

If it is proven the pipe belonged to a juror, it might be grounds for a mistrial or it could be raised as an appellate issue by Johnson's lawyers.