Vegas killer's appeal to be test case for Nevada death penalty

A convicted Las Vegas killer's appeal to the Nevada Supreme Court could change the way the state hands out the death penalty.

The Nevada high court will hear arguments Tuesday in the case of Donte Johnson, convicted of the 1998 execution-style slaying of four men in Las Vegas. The state court will take the arguments under submission Tuesday and will rule later.

The U.S. Supreme Court ruled earlier this year that capital punishment sentences in which the judge, not a jury, decide the death penalty are unconstitutional.

The state court's ruling in Johnson's case will set the precedent for similar judge-issued death sentences, said JoNell Thomas, a Las Vegas criminal defense lawyer. She is also a board member of the Nevada chapter of the American Civil Liberties Union, which opposes the death penalty.

Thomas said the state high court might rule that decisions on death must be made by a jury, as the U.S. Supreme Court ruled. That would mean a new jury should be assigned in cases where the original jury cannot reach a decision.

The state court also might uphold current Nevada law, which says a three-judge panel takes over for a hung jury. But Thomas said if the state court rules in favor of judicial panels, the case would probably be appealed to federal courts.

A hearing on the Johnson case had been set for June but was delayed when the U.S. Supreme Court handed down its decision in an Arizona case. Defense and prosecution attorneys were given additional time to submit new briefs on whether the U.S. Supreme Court ruling could invalidate Nevada's three-judge panel in capital punishment cases.

Dayvid Figler, deputy Clark County special public defender, said the decision by the U.S. Supreme Court puts Nevada's three-judge panel sentencing method in doubt.

Figler, in a brief the U.S. Supreme Court has determined juries, not judges, are the proper body to determine that a person convicted of first-degree murder should be executed.

But Lynn Robinson, chief deputy Clark County district attorney, said the Arizona law that was overturned by the U.S. Supreme Court was different from Nevada's.

The aggravating circumstances found by the judge's panel to merit the death penalty for Johnson were the same circumstances found by the jury when it convicted him, she said. The jury did not reach a decision on the penalty.

Johnson was found guilty of killing Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringer, 20 and Peter Talamantez 20. Two others, Sikia Smith and Terrell Young, were convicted of murder and received life sentences.

The jury was unable to reach a verdict on whether Johnson should receive life or be sentenced to death.

District Judges Jeffrey Sobel, Mike Griffin of Carson City and Steve Elliott of Reno convened as the three-judge panel and sentenced Johnson to death.

Thomas said the U.S. Supreme Court was very clear that sentencing needs to be done by a jury, not judges.

But Robinson said in this case, the sentencing by the three-judge panel "directly reflects the (aggravating) facts found by the jury beyond a reasonable doubt."